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SJC-10932

COMMONWEALTH vs. KENTEL MYRONE WEAVER.

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

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

Homicide. Firearms. Constitutional Law, Admissions and 

confessions, Voluntariness of statement, Waiver of 

constitutional rights by juvenile, Assistance of counsel, 

Public trial. Evidence, Admissions and confessions, 

Voluntariness of statement. Practice, Criminal, Capital 

case, Admissions and confessions, Voluntariness of 

statement, Waiver, Assistance of counsel, Public trial, 

Motion to suppress, New trial.

Indictments found and returned in the Superior Court 

Department on December 5, 2003.

A pretrial motion to suppress evidence was heard by 

Geraldine S. Hines, J.; the cases were tried before Stephen E. 

Neel, J.; and a motion for a new trial, filed on June 1, 2011, 

was heard by Geraldine S. Hines, J., and Jeffrey A. Locke, J.

Ruth Greenberg for the defendant.

John P. Zanini, Assistant District Attorney, for the 

Commonwealth.

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

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

sixteen at the time of the shooting, subsequently admitted to 

committing the murder after prolonged questioning by the police 

and by his mother.

Prior to trial, the defendant filed a motion to suppress 

his statements to the police. That motion was denied following 

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

of murder in the first degree on the theory of deliberate 

premeditation. He was also convicted of the unlicensed 

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

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

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

assistance of counsel in two respects: first, that counsel 

failed to adequately investigate the defendant's claim that his 

statements to police were coerced because counsel did not 

consult with a mental health expert or present expert testimony 

about the voluntariness of those statements; second, that 

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

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

public trial under the Sixth Amendment to the United States 

Constitution. The motion was bifurcated, and different judges

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

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

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

requiring the corroboration of extrajudicial statements as it 
3

applies to juvenile confessions pursuant to our extraordinary 

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

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

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

directed verdict on the firearms charge. We affirm the 

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

c. 278, § 33E.

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

to the Commonwealth, reserving certain details for our analysis 

of the legal issues raised on appeal.

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

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

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

daughter remained outside. The woman heard two gunshots. She 

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

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

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

911.

The daughter testified that, just before the shooting, she 

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

Dudley and Wendover Streets. The group rushed toward the 

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

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

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

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

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

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

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

gunshots fired in quick succession.

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

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

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

black man run down Humphreys Street away from Dudley Street. 

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

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

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

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

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

cap was collected by the police later that evening.

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

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

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

defendant wearing a cap matching the same description when they 

spoke to him approximately two weeks before the victim was 

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

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

the possible contributors to the DNA profile found on the 
5

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

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

A ballistics expert testified that shell fragments 

recovered from the victim were consistent with having been fired 

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

a round barrel, consistent with the description of the handgun 

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

shell casings. No shell casings were recovered from Wendover 

Street.

When emergency medical services arrived at the scene, the 

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

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

back. The medical examiner who performed the autopsy on the 

victim determined that the cause of death was the two gunshot 

wounds.

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

investigation leading up to the incriminating statements that 

the defendant made to police, especially his admission, made 

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

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

defendant’s statements were involuntary, and the result of 

coercion by a combination of lengthy questioning first by police 

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

details concerning the questioning of the defendant and the 
6

resultant incriminating statements to the discussion of the 

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

testimony of the involved police officers and the defendant's 

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

are substantively identical to the testimony given at the 

evidentiary hearing on the motion.

At the conclusion of the trial, a humane practice 

instruction was given to the jury. The judge instructed the 

jury that the Commonwealth bore the burden of proving beyond a 

reasonable doubt that the defendant made his statement to the 

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

stated:

"In order for a statement of a defendant to be 

voluntary, it must not, in any way, be coerced by physical 

intimidation or psychological pressure. Under the law of 

the Commonwealth of Massachusetts, a statement may be 

coerced not only by law enforcement officials but also by a 

private citizen. That is, coercion -- You may find that the 

defendant was coerced. Let me put it this way, coercion may 

occur not only by law enforcement officials, but in order 

to be coercion, it may also be caused by a private citizen. 

A statement made by a defendant is not voluntary if it is 

psychologically coerced. Therefore, if you find that the 

statement made by the defendant was coerced by his mother 

or any other person, you may not consider that statement in 

reaching a verdict."

During deliberations, the jury asked for a legal definition 

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

court adjourned for the day. Neither the judge nor counsel 

located any case law defining the term before court reconvened 
7

the next morning. The judge then repeated his original 

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

the term psychological coercion its plain and ordinary meaning 

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

coercion refers to inappropriate or inordinate psychological 

pressure." The jury subsequently convicted the defendant.

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

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

rule, which "requires corroboration that the underlying crime 

was in fact committed, thus preventing convictions against 

persons who have confessed to fictitious crimes." Commonwealth

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

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

to require corroboration that a defendant was the actual 

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

confession is reliable under the circumstances in which it was 

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

phenomenon of false confessions, we concluded that the problem 

is best addressed through the "strict analysis of the 

circumstances of [an] interrogation as they affect the 

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

On appeal, the defendant asks us to reconsider expanding 

the corroboration rule as it applies to juvenile confessions in 

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

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

citation is provided. He argues that his case illustrates the 

need for an expanded rule requiring additional evidence that the 

accused perpetrated the crime because although there is no 

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

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

to it.

We decline to expand the rule on this record. The 

defendant fails to articulate why our practice of rigorously 

examining the voluntariness of a defendant's confession is an 

inadequate prophylactic measure against the use of false 

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

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

addition to the defendant's admission, the Commonwealth 

presented evidence at trial linking the defendant to the murder,

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

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

fitting the description of a revolver in his possession as he 

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

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

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

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

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

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

disagree, as the jury heard extensive evidence about the 

circumstances surrounding the defendant's statements, and were 

properly instructed on the humane practice rule. We therefore

decline to grant relief under § 33E.

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

defendant next asserts error in the denial of his pretrial

motion to suppress his statements to the police based on his 

claim that they were involuntary and coerced. The Commonwealth 

argues that the defendant waived this argument by failing to 

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

amended, 367 Mass. 921 (1975).1

 In his brief, the defendant does 

not dispute the factual findings of the judge who heard the 

motion (pretrial motion judge) as to the credibility of 

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

conclusions of law." The defendant then states that he 

incorporates by reference the authorities cited in the 

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

for leave to prosecute an interlocutory appeal "in the interests 

of judicial economy and brevity." The defendant additionally 

cites to authorities apparently not cited in the prior filings, 

1 Rule 16 (a) (4) of the Massachusetts Rules of Appellate 

Procedure, as amended, 367 Mass. 921 (1975), requires that the 

appellant's argument "contain the contentions of the appellant 

with respect to the issues presented, and the reasons therefor, 

with citations to the authorities, statutes and parts of the 

record relied on. . . . The appellate court need not pass upon 

questions or issues not argued in the brief."

 
10

but does not provide complete citations or any argument as to 

why those authorities undermine the rulings of the pretrial 

motion judge.

We agree with the Commonwealth that the defendant's 

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

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

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

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

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

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

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

whether the error created a substantial likelihood of a 

miscarriage of justice in the verdict. Id.

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

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

conduct an independent review of his ultimate findings and 

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

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

(2002).

Following an evidentiary hearing, the pretrial motion judge 

found the following facts that we conclude are supported by the 

2 In his reply brief and at oral argument, the defendant 

argued it was not his intention to waive this claim, but rather 

incorporated the authority contained in the trial pleadings in 

the interest of "judicial economy." This contention is 

unavailing.

 
11

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

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

police station for questioning because they had received 

information that he had been seen wearing a blue Detroit Tigers 

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

shooting. Apparently satisfied that Cassim was not involved in 

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

police officer after the interview. Weaver was upset that 

Cassim had been taken to the police station.

After speaking with Cassim, the focus of the investigation 

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

apologized for bringing Cassim to the police station, and told 

Weaver that he wanted to speak to the defendant about the 

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

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

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

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

defendant present, on Monday, August 25.

In the time between speaking with Weaver and the 

anticipated interview with the defendant, O'Leary learned that 

the Boston police had arrested the defendant on a drug offense 

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

indicated that the defendant was wearing a Detroit Tigers 
12

baseball cap. This baseball cap closely resembled the baseball 

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

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

to the Weaver home with another detective to meet with the 

defendant. Although Weaver was cordial and respectful, the 

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

uncomfortable. Weaver had not had any previous contact with the 

police and she was still upset and concerned about the 

detectives conducting the interview with Cassim. She invited 

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

defendant joined them. At some point during the conversation, 

Weaver left the table to continue cooking dinner in the 

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

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

Before the detectives began questioning the defendant, 

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

of the Miranda warnings especially for juveniles. Upon seeing 

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

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

then explained that because his purpose was to question the 

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

advised of his Miranda rights before any questioning took place. 

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

form containing his personal information. The defendant did so 
13

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

the form and then asked Weaver and the defendant if they 

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

each warning to indicate that the rights had been explained to 

them. The pretrial motion judge concluded that Weaver, though 

not highly educated, is an intelligent woman and understood 

those rights.

Weaver noticed that the defendant was becoming "aggravated 

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

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

She and the defendant verbally acknowledged that they understood 

the rights being explained and initialed the form as requested. 

Weaver never explained her understanding of these rights to the 

defendant.

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

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

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

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

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

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

the form that acknowledged that he had taken advantage of the 

opportunity to speak with his mother outside the presence of the 

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

The detectives then questioned the defendant about the 

victim's shooting for about three hours. Weaver occasionally 

left the table to continue cooking dinner but remained within 

earshot of the interview at all times. The defendant denied 

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

shooting, that he was associated with any of the individuals 

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

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

bicycle.

The detectives asked more difficult questions that left no 

doubt that they suspected the defendant of having been involved 

in the shooting. The defendant was unaware that the detectives

had information that the defendant had fallen from his bicycle 

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

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

had injured it playing basketball. Signaling his disbelief, 

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

injured himself by falling off his bicycle the night of the 

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

was lying. When pressed about when the basketball injury 

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

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

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

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

defendant said that his injury occurred two days after the 

shooting.

The detectives then questioned the defendant about his

Detroit Tigers baseball cap. The defendant admitted to wearing 

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

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

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

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

distinctive markings placed on it. When asked where the cap 

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

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

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

on August 12.

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

a black male matching the defendant's description running from

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

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

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

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

confidence that the defendant was present on Wendover Street on 

August 10 and was involved in the shooting. The interrogation 

was terminated shortly thereafter. O'Leary told the defendant 

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

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

defendant's story.

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

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

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

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

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

hoping for whatever information Weaver could provide to assist 

in the investigation.

The pretrial motion judge found that neither Weaver nor the 

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

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

interview. The defendant's demeanor during the questioning was 

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

that the same questions were being asked repeatedly. The 

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

alcohol, incapacitated, or incompetent. Although the detective

suspected that the defendant was involved in the shooting, he

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

the questioning at any time.

After the detectives left, Weaver began questioning her 

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

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

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

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

and she wanted answers from him. The pretrial motion judge 

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

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

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

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

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

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

answers. After about an hour, she stopped questioning the 

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

thinking about what had just happened.

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

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

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

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

conversation with the defendant from the night before. 

Because she was distracted by the events of the previous 

evening, Weaver decided to leave work early and arrived home 

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

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

After about an hour she stopped questioning him because the 

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

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

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

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

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

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

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

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

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

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

seeking the truth about the defendant's involvement in the 

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

in accordance with her personal spiritual beliefs and was not 

acting as an agent of the police.

Weaver then prayed again and told the defendant she would 

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

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

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

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

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

sincere and deeply held religious convictions, began to cry and 

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

and joined her mother in prayer. Having realized the defendant 

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

defendant had to confess for the good of his soul.

The pretrial motion judge found that the concern and love 

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

her singular focus on his spiritual rather than his legal wellbeing. She did not give the defendant any advice or counsel 

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

the constitutional protections to which he was entitled. She 

did not tell the defendant to remain silent but rather advised 

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

assistance for her son.

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

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

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

that he assumed the defendant was involved and Weaver said,

"Yes."

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

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

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

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

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

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

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

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

lawyer was appointed to represent him. Sometime after midnight 

on August 27, the Weaver family concluded their prayer session 

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

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

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

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

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

detective to arrive. No police officer had requested that the 

defendant be brought to the police station.

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

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

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

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

Realizing that the defendant was about to make an inculpatory 

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

statement until the defendant was represented by counsel. 

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

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

produced a juvenile Miranda form from his briefcase and began 

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

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

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

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

free to leave the station.

i. August 25 statements. The defendant first argues that 

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

been suppressed because he did not validly waive his Miranda 

rights before speaking with the police and because his 
21

statements were not voluntary. Rejecting these contentions, the 

pretrial motion judge concluded that the Miranda warnings were 

not required and that the defendant's statements were 

voluntarily made. We agree.

A. Custodial interrogation. Miranda warnings are required 

only when a defendant is subjected to a custodial interrogation, 

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

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

result in suppression of a voluntary statement made in a 

noncustodial setting" (citation omitted). Commonwealth v.

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

custodial depends on the "objective circumstances of the 

interrogation, and not on the subjective views of either the 

interrogating officers or the person being questioned." 

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

focuses on whether a reasonable person in the defendant's 

position would believe that his freedom of movement was 

restricted to the degree associated with formal arrest. 

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

determining whether a defendant was in custody, the court 

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

police conveyed any belief or opinion that the person being 

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

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

end the interview by leaving the place of interrogation, or 

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

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

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

environment in which the defendant was questioned was not 

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

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

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

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

where defendant allowed police into home to question him). 

Although the detectives informed the defendant that they 

believed he was involved in the crime being investigated, they

did not coerce or threaten the defendant during the interview, 

and the defendant and his mother were free to terminate the 

interview at any time.

We appreciate that Weaver, and not the defendant, invited 

the detectives into their home and permitted them to conduct the 

interview. Nonetheless, we agree with the pretrial motion judge 

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

have viewed his questioning as coercive or believed that his 

freedom of movement was curtailed to the degree of arrest. 

Accordingly, the Miranda warnings were not required in 

connection with the August 25 interrogation.
23

B. Interested adult. We also agree with the pretrial 

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

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

waiver was invalid because he was not afforded the special 

protections due to juveniles. "Investigating officials 

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

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

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

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

the Commonwealth bears a heavy burden of demonstrating that a 

defendant knowingly and intelligently waived his privilege 

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

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

juvenile, the court proceeds with "special caution when 

reviewing purported waivers of constitutional rights" (quotation 

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

age, the Commonwealth must demonstrate that prior to waiving his 

rights, he was given the opportunity to consult with an 

interested adult who was informed of, and understood, those 

rights. Id. at 35.

In his motion to suppress, the defendant argued that his 

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

understand the Miranda warnings and because she felt compelled 

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

defendant also denied having the opportunity to consult with 

her.

In determining whether an adult is an interested adult, 

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

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

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

should have been reasonably apparent to the officials 

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

her behalf lacked capacity to appreciate the juvenile's 

situation and to give advice, or was actually antagonistic 

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

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

interested adult and was not afforded the opportunity for 

consultation. Id.

Here, the pretrial motion judge explicitly found that 

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

disturb this finding. To the extent that the testimony of 

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

note that credibility determinations "are the province of the 

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

(2011). Moreover, viewing the circumstances from the 

perspective of the officers, it appeared that Weaver was an 

intelligent, responsible adult who cared for her son and was 

concerned for his welfare. Additionally, the record reflects 
25

that Weaver understood why the police were questioning her son, 

and she remained present or within listening distance throughout 

the interview. Nor was there any apparent animosity between the 

defendant and Weaver.

The judge also found that Weaver and the defendant had had 

a private consultation prior to signing the form and waiving 

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

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

juvenile actually to consult with the interested adult, for it 

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

Mass. at 35.

Additionally, the motion judge correctly found that Weaver 

was an interested adult despite encouraging the defendant to 

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

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

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

or who fails to seek legal assistance immediately is a 

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

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

(mother who advised son to be truthful with police was 

interested adult despite giving advice that would not have 

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

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

that the defendant was afforded the protections of the 

interested adult rule.

C. Valid waiver. Even assuming the Miranda warnings were 

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

rights was valid. In determining whether a waiver is knowing 

and voluntary, the court examines the totality of the 

circumstances surrounding the waiver. See Commonwealth v. 

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

inquiry include "promises or other inducements, conduct of the 

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

emotional stability, experience with and in the criminal justice 

system, physical and mental condition, the initiator of the 

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

interrogation, including the recitation of Miranda warnings" 

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

(2013).

The facts support the pretrial motion judge's conclusion 

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

defendant and his mother were provided with Miranda warnings, 

which both understood. The interrogation took place in the 

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

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

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

lasted some time, the questioning was generally nonaggressive 
27

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

defendant. The defendant was young, but was of average 

intelligence and had had at least one prior experience with the 

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

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

substances. Nor did the defendant present any evidence that his 

mental state was otherwise compromised. The defendant also made 

several statements aimed at exculpating himself, including 

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

providing an explanation for the injury to his leg. See 

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

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

D. Voluntariness. Due process requires a separate inquiry 

into the voluntariness of a defendant's inculpatory statements. 

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

voluntary statement is one that is the product of a rational 

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

psychological coercion" (citation and quotations omitted). 

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

examines the totality of the circumstances to determine whether 

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

rational intellect and "not the product of inquisitorial 

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

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

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

stability, and experience with the criminal justice system." 

Id. Applying these factors to the circumstances, we conclude 

that the defendant's waiver was knowing and voluntary for 

largely the same reasons set forth above. Additionally, 

although the defendant expressed frustration with the 

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

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

(statements coerced where defendant demonstrated disturbed 

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

was subjected to hostile interview). Given these circumstances, 

the pretrial motion judge did not err in concluding that the 

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

not the product of physical or psychological coercion.

ii. August 27 statement. The defendant also argues that 

the motion judge erred in denying his motion to suppress his 

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

because it was obtained in violation of his Miranda rights and 

was involuntary. As the pretrial motion judge correctly 

concluded, the Miranda warnings were not required because the 

defendant's statement was not the product of interrogation or 

its functional equivalent by the police. See Commonwealth v. 

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

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

police [other than those normally attendant to arrest and 

custody] that the police should know are reasonably likely to 

elicit an incriminating response from the suspect'" [citation

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

warnings when the defendant made his statement. Although the 

detectives anticipated that the defendant would make a statement 

and were therefore providing the Miranda warnings, the statement 

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

to elicit it.

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

his statement should have been suppressed because his mother 

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

police station to make the statement. A private party is 

considered a State agent when government officials prompt the 

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

they themselves could not have legally engaged. Commonwealth v. 

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

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

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

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

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

detectives urged Weaver to have a heart to heart conversation 

with her son to determine whether he participated in the 

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

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

or promises to obtain her assistance. Additionally, the 

detectives do not appear to have been trying to gain information 

through Weaver that they could not otherwise legally obtain 

themselves, especially where the defendant voluntarily submitted 

to questioning about the shooting. Moreover, the pretrial 

motion judge's finding that Weaver aggressively questioned the 

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

with her personal spiritual beliefs undercuts the defendant's 

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

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

entered into agreement with government or who reports 

incriminating evidence to police out of conscience not acting as 

government agent [quotation and citation omitted]). We 

therefore reject the defendant's contention that Weaver was 

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

confession.

B. Voluntariness. We lastly consider the defendant's 

argument that his statement at the police station was 

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

the law of this Commonwealth, a judge must determine the 

voluntariness of statements extracted by private coercion, 

unalloyed with any official government involvement" (quotation 

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

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

introduced at trial is every bit as offensive to civilized 

standards of adjudication when the coercion flows from private 

hands as when official depredations elicit a confession"

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

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

analysis delineated above regarding the voluntariness of the 

defendant's August 25 statements.

The defendant argues that his mother coerced his August 27

confession by relentlessly questioning him for two days about 

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

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

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

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

defendant may offer evidence that a relative's involvement in 

questioning about a crime is coercive. See Commonwealth v. 

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

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

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

defendant's decision to confess, the circumstances of the 

confession did not evidence that the defendant's will was 

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

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

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

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

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

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

psychologically coerced where defendant made voluntary decision 

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

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

that juvenile tell truth as coercive practice).

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

defendant was not physically or psychologically coerced by his 

mother and her religious beliefs such that he could not resist 

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

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

was not otherwise overwrought such that his statement was not 

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

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

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

In fact, the record does not demonstrate whether the defendant 

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

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

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

(court considered whether appeal to suspect's religious beliefs 

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

indicate that the defendant would be treated more leniently if 

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

defendant did not rise to the level of improper psychological 

coercion that would render his statement involuntary, and the 

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

act.

Accordingly, we conclude that the judge did not err in 

denying the defendant's pretrial motion to suppress on the 

various grounds asserted by the defendant.

3. Ineffective assistance of counsel. a. Mental health 

expert. The defendant argues that the judge who heard one 

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

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

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

investigate the defense of psychological coercion adequately by 

not consulting with a mental health expert or presenting expert 

testimony about the voluntariness of the defendant's confession 

at either the suppression hearing or at trial.4

 The defendant 

also contends that the first new trial motion judge erred 

3 In his motion for a new trial, the defendant asserted two 

bases for ineffective assistance of counsel. Because the trial 

judge had retired, the issues were bifurcated and decided by 

judges other than the trial judge.

4 The defendant initially argued that trial counsel should 

have consulted with an expert and presented expert testimony on 

the existence and etiology of false confessions, in addition to 

expert testimony on the issue of voluntariness. On appeal, the 

defendant abandons this argument and acknowledges we have not 

yet ruled such evidence admissible. Commonwealth v. Hoose, 467 

Mass. 395, 419 (2014).

 
34

because he failed to distinguish between testimony concerning 

the voluntariness of a statement and the phenomenon of false 

confessions. We conclude that the motion was properly denied, 

although for reasons different than those stated by the judge.

In a written memorandum of decision and order issued after 

three days of evidentiary hearings, the first new trial motion 

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

trial counsel is a very experienced and highly regarded defense 

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

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

Because the defendant was sixteen years of age, trial counsel 

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

about the circumstances surrounding the defendant's statements 

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

as their agent to induce the defendant to admit his involvement 

in the homicide. Trial counsel moved to suppress the 

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

5 Because the judge who heard this portion of the 

defendant's motion for a new trial (first new trial motion 

judge) drew facts about the murder, investigation, and 

defendant's admission from those found by the judge had who 

presided over the defendant's pretrial motion to suppress, we do 

not repeat them here. Insofar as relevant here, the first new 

trial motion judge based his additional findings on the 

affidavits and testimony of the defendant's trial counsel and

Dr. Frank DiCataldo, a psychologist whom the defendant had

retained, as well as the affidavits of the defendant and his 

mother, Weaver. The affidavits submitted by the defendant and 

Weaver reiterated that the defendant's statements were not the 

product of his free will, but rather were coerced by Weaver.

 
35

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

interested adult for her son by impermissibly pressuring him to 

confess to the police.

Trial counsel testified that he prepared a defense by 

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

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

judge found that at the time trial counsel litigated the motion 

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

aware of any appellate or trial court decisions permitting 

expert testimony on claimed coerced or false confessions.6

 

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

consult with or present an expert on psychological coercion, and 

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

the defense to do so.

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

DiCataldo, a forensic psychologist, examined the defendant and 

testified at the evidentiary hearing. DiCataldo did not find 

any evidence that the defendant suffered from any significant 

cognitive limitations and did not detect any signs of mental 

illness. After administering two psychological tests, 

6 The first new trial motion judge noted that trial counsel 

had defended one case where a codefendant's request to present 

expert testimony on coerced and false confessions was denied

because it failed to satisfy the standards of expert testimony, 

and that the ruling was affirmed on appeal. See Commonwealth v. 

Robinson, 449 Mass. 1, 5-7 (2007). Trial counsel acknowledged 

he would have been aware of the decision.

 
36

interviewing the defendant, and gaining an understanding of the 

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

a protracted investigation by his mother, the defendant's 

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

intellect. DiCataldo acknowledged that the basis for his 

opinion was limited because he had never evaluated a 

voluntariness claim where the asserted coercive force was a 

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

evaluation. DiCataldo also acknowledged that neither of the 

tests he administered to the defendant was specifically focused 

on juveniles and that there are no specific psychological tests 

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

Applying the standard set forth in Commonwealth v. 

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

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

the defendant's claim that trial counsel was ineffective for

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

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

absence of Massachusetts case law permitting expert testimony on 

the psychology of coerced and false confessions, and did not 

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

defense.

The judge further concluded that the defendant failed to 

satisfy the prejudice prong of a Saferian analysis because he 
37

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

testimony would have been admissible under the foundational 

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

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

familiar to a fact finder that expert testimony was not required 

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

psychological influences of a parent on her child are 

categorically different from those of other authority figures, 

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

on scientific research involving the impact of psychologically 

coercive or manipulative techniques by police to obtain a 

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

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

judge concluded that because DiCataldo's proffered testimony was 

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

consult an expert or attempt to present expert testimony, could 

not have prejudiced the defendant's case.

Where a defendant has been convicted of murder in the first 

degree, the court evaluates a claim of infective assistance 

claim to determine whether "there exists a substantial 

likelihood of a miscarriage of justice," Commonwealth v. 

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

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

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

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

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

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

favorable than the constitutional standard for determining 

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

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

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

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

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

Where a defendant challenges tactical or strategic 

decisions by trial counsel, the court will find ineffective 

assistance "only if such a decision was manifestly unreasonable 

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

However, the "manifestly unreasonable standard" only applies 

"where the attorney's purportedly constitutionally ineffective 

conduct involved a strategic decision, rather than some other 

claimed inadequacy such as a lack of appropriate investigation 

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

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

816, 822 (1998).

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

psychiatric history but chose to pursue another defense without 

investigating a criminal responsibility defense. Lang, 473 

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

concurred that the "manifestly unreasonable standard" did not 

apply in these circumstances because "strategic choices made 

after less than complete investigation are reasonable [only] to 

the extent that reasonable professional judgments support the 

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

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

Although Lang and the cases cited therein relate to the adequacy 

of an investigation into a lack of criminal responsibility 

defense, these cases provide a useful framework for evaluating 

the defendant's claim.

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

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

a mental health expert was a lapse rather than a reasoned 

decision. This finding was confined to trial counsel's 

investigation into case law permitting expert testimony on 

psychological coercion as it related to false confessions and 

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

testimony about voluntariness. We therefore assume without 

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

health expert was not a strategic or tactical decision and thus 

manifestly unreasonable. Accordingly, we ask only whether the 

failure to consult a mental health expert or to present expert 

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

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

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

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

In order to carry his burden of demonstrating that the 

expert consultation and testimony would have accomplished 

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

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

must demonstrate that DiCataldo's testimony would have been 

admissible. The first new trial motion judge correctly 

concluded that DiCataldo's testimony regarding a child's 

susceptibility to parental coercion generally, or the 

defendant's susceptibility to coercion by his mother would not

have been admissible.

Section 702 of the Massachusetts Guide to Evidence 

governing the admission of expert testimony provides:

"A witness who is qualified as an expert by 

knowledge, skill, experience, training, or education 

may testify in the form of an opinion or otherwise if

"(a) the expert's scientific, technical, or other 

specialized knowledge will help the trier of fact to 

understand the evidence or to determine a fact in 

issue;

"(b) the testimony is based on sufficient facts 

or data;

"(c) the testimony is the product of reliable 

principles and methods; and

"(d) the expert has reliably applied the 

principles and methods to the facts of the case."

Mass. G. Evid. § 702 (2016).
41

DiCataldo's evaluation of the defendant was based on his 

assessment of the defendant through the administration of 

psychological tests and information provided by the defendant 

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

facts relied on by DiCataldo were substantially different from 

those presented at the hearing on the motion to suppress and 

found by the pretrial motion judge. Additionally, DiCataldo 

created his own methodology for forming an opinion about the 

voluntariness of the defendant's statement because he was not 

aware of any peer-reviewed or generally accepted methodology 

within the psychological community that would apply to the 

circumstances in this case.

We have explained that "expert testimony is sufficiently 

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

generally accepted in the relevant scientific community; . . . 

or (2) satisfies the alternative requirements adopted in 

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

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

(2010). The defendant claims that he demonstrated the 

admissibility of DiCataldo's testimony by establishing general 

acceptance in the psychological community. We disagree.

First, the defendant relies on the false logic that because 

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

Commonwealth, his opinion was admissible in this case. We 

reject this unsubstantiated statement. The defendant does not 

point to a single case where DiCataldo testified about the 

coercion of a child by a parent.

The defendant further argues that the first new trial 

motion judge erred in ruling that DiCataldo's testimony was 

inadmissible because the courts of the Commonwealth have long 

recognized that a defendant is entitled to present expert 

testimony by a mental health expert regarding the voluntariness 

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

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

admissible. The defendant cites to several cases to illustrate 

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

expert testimony related to a mental impairment that called into 

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

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

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

overruled on another ground by Commonwealth v. Carlino, 449 

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

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

(1986) (head trauma that impacted voluntariness of statements 

and raised question of criminal responsibility); Commonwealth v. 

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

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

trauma, mental illness, personality disorder, "defective 

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

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

mental capacity of confirmed alcoholic).

The defendant argues that in rejecting DiCataldo's 

testimony as inadmissible, the first new trial motion judge 

concluded that "psychology as a science was incapable of 

yielding reliable admissible evidence probative of a statement's 

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

case law demonstrates that when expert testimony as to a novel 

or developing area of science is offered, the court carefully 

considers whether it is "sufficiently reliable to reach the 

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

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

Mass. at 67.

In addition to determining the reliability of an expert's 

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

the reasoning or methodology can be applied to the facts in 

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

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

addition to employing a one of a kind methodology to evaluate 

the defendant, relied on research involving the impact of 

psychologically coercive or manipulative techniques by police to 

obtain a statement to evaluate whether the defendant had been
44

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

but it also depends on expert testimony on false confessions, 

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

419.

Similarly misplaced is the defendant's reliance on our 

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

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

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

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

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

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

defendant called a clinical psychologist to testify "about his 

examination of the defendant and his opinion with regard to the 

defendant's susceptibility to being influenced by persons in 

authority like the police." Id.

While these facts are superficially similar to the 

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

Although the admissibility of the expert testimony was not at 

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

before the court in that case reveals that the defendant was 

evaluated by the clinical psychologist because there was a 

question of criminal responsibility and competency to stand 

trial. The psychologist conducted a forensic mental health 

assessment of the defendant, which included extensive 
45

investigation into the defendant's past as well as interviews 

and a number of psychological assessment tests of the defendant. 

He testified that the defendant suffered from attention deficit 

disorder and dependent personality disorder, and that these 

conditions made him more susceptible to being influenced by 

people in positions of authority. The methodology used by the 

psychologist and its application to the facts in Jackson were

profoundly different from those used by DiCataldo. Moreover, 

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

evidence that it was his mental health impairments that made him 

more susceptible to pressure by authority figures. Here, the 

defendant sought to present evidence that his will was simply 

overborne by his mother. These inquiries are fundamentally 

distinct.

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

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

forensic psychiatrist tending to show that the defendant had 

been coerced into confessing by the presence of his mother. 

Although we do not know the methodology employed by the 

psychiatrist in evaluating Adams, it is apparent from the 

unpublished memorandum and order that the Appeals Court issued 

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

was a contention that his intellectual abilities or disabilities 

may have affected the voluntariness of his statement. As 
46

discussed earlier, while we regularly admit expert testimony 

regarding the voluntariness of a statement where the defendant 

suffers from a mental impairment or mental health issue, there 

is no evidence that the defendant here had cognitive limitations 

or suffers from a mental illness that would affect his capacity 

to make a voluntary statement.

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

determination that the parent-child dynamic is generally 

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

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

understanding of the average juror, nor is the proposition that 

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

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

statements were psychologically coerced by his mother "could be 

accomplished through its common understanding without need of 

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

(2007).

Our conclusion that DiCataldo's testimony would not have 

been admissible at trial does not foreclose a defendant from 

presenting expert testimony regarding coercion and 

voluntariness. "Determining whether . . . scientific testimony 

is reliable often will hinge on the presentations made by the 

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

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

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

to show that the methodology used by DiCataldo would be 

generally accepted by the scientific community or was otherwise 

admissible under the factors articulated in Lanigan. Because 

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

trial, we cannot conclude that it would have accomplished 

something material for the defense such that the jury verdict 

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

of ineffective assistance must fail.

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

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

on the ground that his trial counsel was ineffective for failing 

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

of jury empanelment.

After an evidentiary hearing, the judge who hear this 

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

written memorandum of decision in which she found the following 

facts, which are supported by the evidence. Jury selection 

spanned two days. The approximately ninety venire members made 

the court room was very crowded. They took every available 

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

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

informed the defendant's mother that she and those accompanying 

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

were also denied entry the second day of empanelment for the 

same reason. Trial counsel lodged no objection.

The second new trial motion judge concluded that the sole 

reason that a court officer closed the court room to the 

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

crowded condition. The judge found that facts surrounding the 

empanelment did not satisfy the criteria articulated in Waller

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

room closure, but concluded that the closure did not prejudice 

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

A violation of the Sixth Amendment right to a public trial 

constitutes structural error. See Commonwealth v. Jackson, 471 

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

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

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

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

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

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

S. Ct. 2356 (2013).

Where a meritorious claim of structural error is timely 

raised, the court presumes "prejudice, and reversal is 

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

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

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

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

has procedurally waived his Sixth Amendment public trial claim 

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

ineffective assistance of counsel in a collateral attack on his 

conviction, the defendant is required to show prejudice from 

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

a miscarriage of justice) and the presumption of prejudice that 

would otherwise apply to a preserved claim of structural error 

does not apply." LaChance, supra at 856.

The defendant did not raise an objection to the court room 

closure because his attorney did not understand that the public 

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

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

analysis, which anticipated the rule announced in LaChance, 

supra, correctly determined that counsel's inaction was the 

product of "serious incompetency, inefficiency, or inattention 

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

was not objectively reasonable," but that the defendant

otherwise failed to show that trial counsel's conduct caused 

prejudice warranting a new trial.

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

demonstrate prejudice, but rather asks us to revise the LaChance

rule and instead hold that that a defendant who raises an 

ineffective assistance of counsel claim and has established 
50

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

performance fell below that of an ordinary fallible attorney, is 

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

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

Moreover, the defendant has not advanced any argument or 

demonstrated any facts that would support a finding that the 

closure subjected him to a substantial likelihood of a 

miscarriage of justice. Relief is therefore not warranted under 

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

trial is affirmed.

4. Firearms conviction. The defendant lastly asks the 

court to vacate his firearms conviction on the grounds that the 

Commonwealth presented no evidence that he lacked the required 

firearms licenses, and thus failed to prove beyond a reasonable 

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

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

unlicensed possession, but rather an affirmative defense. 

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

cited. Accordingly, the defendant bore the burden of producing 

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

burden.

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

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

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

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

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

defendant is entitled to the benefit of a corrected mittimus to 

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

with it the opportunity for parole consideration after fifteen 

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

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

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

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

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

Superior Court for further proceedings consistent with this 

opinion.

So ordered.