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SJC-13394

COMMONWEALTH vs. WILLIAM F. McDERMOTT.

Norfolk. October 2, 2023. - January 25, 2024.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.1

Homicide. Evidence, Cross-examination. Practice, Criminal, 

Postconviction relief, Conduct of prosecutor, Crossexamination by prosecutor, Argument by prosecutor, 

Instructions to jury, Sentence. Estoppel. Constitutional 

Law, Sentence. Due Process of Law, Sentence.

Indictment found and returned in the Superior Court 

Department on November 30, 1981.

Following review by this court, 393 Mass. 451 (1984), a

motion for a new trial, filed on October 27, 2020, was heard by 

Brian A. Davis, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

K. Hayne Barnwell for the defendant.

Michael McGee, Assistant District Attorney, for the 

Commonwealth.

The following submitted briefs for amici curiae:

1 Justice Cypher participated in the deliberation on this 

case prior to her retirement.
2

Stephen Cook, of California, W. Lydell Benson, Jr., of New 

York, Eileen Hren Citron, William A. Bejan, & Leslie Epstein 

Wallace, of the District of Columbia, Radha Natarajan, & 

Katharine Naples-Mitchell for New England Innocence Project & 

another.

Jeremy M. McLaughlin & Andrew J. Wu, of California, 

Nicholas N. Chan & Krishna Hedge, of Pennsylvania, & Peter W. 

Shanley for Massachusetts LGBTQ Bar Association & others.

Stanley Donald, pro se.

GAZIANO, J. In 1982, a Superior Court jury convicted the 

defendant, William F. McDermott, of murder in the first degree. 

On direct review, we held that the trial judge had erred in 

failing to instruct the jury that evidence of intoxication could 

be considered in determining whether the defendant acted with 

extreme atrocity or cruelty as to support a verdict of murder in 

the first degree. See Commonwealth v. McDermott, 393 Mass. 451, 

459, 461 (1984). Rather than ordering a new trial, the court 

exercised its authority pursuant to G. L. c. 278, § 33E, and 

reduced the verdict to murder in the second degree "given the 

entire posture of the case." Id. Mitigating factors included 

that the defendant was "just seventeen years old at the time of 

the incident, academically deficient, with some drug and alcohol 

problems . . . and [had] a poor relationship with his father." 

Id. at 460-461. The court also noted the defendant's "sexual 

confusion" and evidence that he killed the victim "following, 

and in fear of repetition of, an anal rape." Id. at 461.
3

In 2020, the defendant filed a second motion for a new 

trial, raising three issues:2 first, the prosecutor's crossexamination and closing argument inserted homophobic invective 

into the case and were otherwise highly inflammatory; second, 

the judge failed to instruct the jury properly on self-defense, 

excessive use of force in self-defense, sudden provocation, and 

sudden combat; and third, a sentence of life with the 

possibility of parole, imposed on an individual seventeen years 

old at the time of the fatal shooting, is prohibited by the 

Eighth Amendment to the United States Constitution and art. 26 

of the Massachusetts Declaration of Rights. While finding that 

the prosecutor engaged in misconduct, a Superior Court judge 

(motion judge) nonetheless denied the motion for postconviction 

relief without an evidentiary hearing.

We adopt the motion judge's finding of prosecutorial

misconduct. Although the prosecutor had a right to challenge 

the defense, which focused on the victim's alleged undisclosed 

sexual orientation and workplace sexual assault, portions of the 

cross-examination and closing argument went beyond the bounds of 

2 In his first motion for a new trial, filed in 2004, the 

defendant argued that the trial judge's jury instructions on 

malice aforethought and provocation erroneously shifted the 

burden of proof. A Superior Court judge denied the defendant's 

motion, and that decision was affirmed by the Appeals Court in 

an unpublished opinion. See Commonwealth v. McDermott, 65 Mass. 

App. Ct. 1112 (2006). This court denied further appellate 

review. See 446 Mass. 1104 (2006).
4

a permissible response. Despite these transgressions, we 

conclude that the errors arising from the prosecutor's 

misconduct, considered in context of the overwhelming evidence 

against the defendant and its likely influence on the verdict, 

did not create a substantial risk of a miscarriage of justice. 

Next, we hold that the defendant's challenges to the selfdefense jury instructions are estopped by prior postconviction 

rulings, and any error in the provocation jury instructions did 

not create a substantial risk of a miscarriage of justice. 

Finally, we conclude that neither the Eighth Amendment nor art. 

26 bars the defendant from serving a sentence of life with the 

possibility of parole after fifteen years for the crime of

murder in the second degree. Accordingly, the denial of the 

defendant's motion for a new trial is affirmed.3

Background. 1. Facts. a. Commonwealth's case. In the 

fall of 1981, the seventeen year old defendant met Robert Kemp, 

the manager of the Cohasset Golf Club (club). Kemp, sometime in 

October 1981, hired the defendant as a maintenance worker. At 

the time, Kemp owned a .22 caliber Sentinel revolver with a 

capacity of nine rounds. He kept the firearm in a filing 

3 We acknowledge amicus briefs submitted by the New England 

Innocence Project and the Criminal Justice Institute at Harvard 

Law School; the Massachusetts LGBTQ Bar Association, GLBTQ Legal 

Advocates & Defenders, and the Massachusetts Association of 

Criminal Defense Lawyers; and Stanley Donald.
5

cabinet in his office. The filing cabinet also held a box

containing petty cash in an amount ranging from one hundred 

dollars to $500.

On November 20, 1981, at around 1 P.M., one of Kemp's 

friends visited him at work. When the friend left, between 2:30

P.M. and 3 P.M., he observed Kemp's car parked in the parking 

lot. An hour later, a club member arrived to pick up meat he 

had purchased from the club. While Kemp and the club member 

spoke in the kitchen, the defendant carried two boxes of meat to 

the club member's car, placing the boxes behind the car. The 

defendant then returned to work. The club member described the 

defendant as a considerate and polite young man.

At approximately 4 P.M., Kemp called his wife, who expected 

him home at around 5:30 P.M. When Kemp did not come home that 

evening, his wife searched for him all night and into the early 

morning hours without success. Meanwhile, at 8:30 P.M., 

Marshfield police observed Kemp's car parked near a burned-down 

church in the Green Harbor section of town but had no reason at 

the time to investigate. The car remained parked there 

overnight.

The club's chef reported for work the next morning. He 

observed blood droplets on the kitchen floor, a towel soaked in 

blood under the sink, a bloody squeegee beside the sink, and 

Kemp's eyeglasses on the floor behind a pan rack. The chef 
6

alerted the police. Responding police officers noticed 

additional blood spots near the stairs leading into the club and 

bloody drag marks on a hallway carpet. They located Kemp's 

revolver outside the kitchen atop a stone wall below a deck. It 

contained three spent cartridge casings (one casing within the 

chamber directly under the hammer and the other two side-byside) followed by six consecutive empty chambers. The officers 

observed two bullet holes in the kitchen -- one projectile had 

passed through a wooden door and the other impacted a concrete 

block wall.

That afternoon, a neighbor discovered Kemp's body in a

ditch within a wooded area near the eighteenth hole of the golf 

course. Kemp was fully clothed with the pockets of his pants 

turned inside out. Missing were his wedding band, gold watch, 

and wallet. Police found four spent .22 caliber cartridge 

casings on the ground near Kemp's body. Kemp died from eleven 

or twelve gunshot wounds: four to the right side of his head, 

one to his right cheek, two to his chest, four to his back, and 

one that exited his torso and lodged into his right elbow. A 

State police ballistician opined that the eleven projectiles 

removed from Kemp's body, as well as the spent cartridge casings

found in the revolver and near the body, were fired from Kemp's

revolver.
7

While searching Kemp's car, investigators found the club's 

petty cash box and bloodstains on the back seat. Outside the 

vehicle in a wooded area, police also located two sets of keys 

to the car and Kemp's bloodstained jacket, which had six bullet 

holes in the upper body area.

At the time of the shooting, the defendant lived with his 

parents approximately two miles from the church parking lot. In 

a search of the defendant's bedroom, various bloodstained 

articles of clothing -- including jeans, underwear, shoes, and a 

jacket -- were discovered. On November 23, 1981, the defendant 

was arrested at his sister's house in Pennsylvania, where he had 

fled the day after the fatal shooting.

b. Defendant's version. The defendant testified that he 

met Kemp in September 1981 while he was hitchhiking to a party 

in Marshfield. Later that day, Kemp offered the defendant a 

"big money" maintenance job at the club. Within a few days, the 

defendant called Kemp to follow up on the job offer. Kemp 

picked up the defendant at a fast-food restaurant, bought him 

alcohol, and offered the defendant thirty dollars if Kemp could 

perform oral sex on him. The defendant agreed, and they drove 

to a nearby cemetery. The defendant was unable to become 

aroused during the sex act, but Kemp paid him anyway.

On October 2, 1981, the defendant, accompanied by his 

girlfriend, filled out a job application at the club. 
8

Afterward, the three of them went to a bar, where Kemp got the 

defendant alone and begged to perform oral sex on him. After 

dropping off the defendant's girlfriend, Kemp and the defendant 

snorted cocaine purchased by Kemp and attempted to have oral 

sex. Kemp, once again, paid the defendant thirty dollars.

The pattern continued over the next three weeks or so:

Kemp supplied the defendant with alcohol and narcotics, placed 

his mouth on the defendant's penis, and gave him thirty dollars 

each time. Kemp also pressured the defendant for anal sex,

asking the defendant to let Kemp "put it up [his] bum." One 

time, Kemp bragged about knowing "people in Rhode Island" who 

break legs, cut off "pricks," and stuff them in their victim's 

mouths.

On November 20, 1981, the defendant telephoned Kemp to see 

if he was needed at work. Kemp told the defendant to finish 

painting the women's bathroom and that he would pay his taxicab

fare. The defendant arrived at around 1:30 P.M. Kemp was 

inside his office talking to a friend. The defendant consumed a 

mixed drink, served by Kemp, and went upstairs to the second 

floor to paint the bathroom. While working, the defendant drank 

a few more mixed drinks and smoked marijuana.

After completing the painting, the defendant was on a 

ladder removing tape from the ceiling when Kemp entered the 

bathroom. Kemp grabbed the defendant by the penis and told him 
9

he needed to comply to keep both his job and his "prick." The 

defendant testified:

"[H]e forced me down on the couch and took off my pants, 

and he put his penis in my bum. He had his hands wrapped 

around me -- around my waist. . . . He [then] got up and 

left for some reason. He threw me a hundred-dollar bill 

and told me I liked it."

The defendant was frightened, felt violated, and was in pain 

from the sexual assault. He also felt disorientated from the 

alcohol and drugs he had consumed earlier that day.

The defendant dressed and went downstairs to the kitchen,

where Kemp was speaking to a club member. The defendant carried 

meat to the club member's car. He attempted to enter the car, 

but the doors were locked. He then returned to the kitchen. As 

soon as the club member left, Kemp grabbed the defendant by his 

hair and jacket, and kicked him on the backside. Kemp insisted 

that they "finish." They returned to the second-floor bathroom, 

where Kemp ordered the defendant to remove his pants. The 

defendant managed to break free from Kemp by telling him that he 

needed to use the bathroom. Kemp removed his revolver from his 

waistband, slamming it down on the vanity.

The defendant grabbed the firearm and ran downstairs to the 

kitchen. Kemp chased after him. The defendant tripped, fell on 

the ground, and fired the revolver in Kemp's direction as he got 

up. He did not aim the firearm, nor did he see Kemp as he 

fired. Kemp fell to the kitchen floor.
10

The defendant was confused and disoriented. In this 

panicked state, he attempted to clean up the blood spilled from 

Kemp's body. He then dragged Kemp outside and into the car. 

The defendant dropped Kemp's body in a ditch by the side of the 

road. He denied shooting Kemp while he was in the ditch or 

reloading the nine-shot revolver. He also denied rummaging

through Kemp's pockets or stealing his money or jewelry. The 

defendant drove to Marshfield, parked in a church parking lot, 

tossed the keys into a wooded area, and walked home. The next 

day, after purchasing a train ticket with the one hundred dollar

bill Kemp had thrown at him, he traveled to Pennsylvania.

The defendant called Peter Werner to testify that Kemp was 

not open about his sexual orientation and used his position as 

club manager to proposition young men. Werner, age twenty-two, 

described a sexual encounter with Kemp at a highway rest area on 

or around October 20, 1981. Werner stopped at the rest area to 

meet other men. He met an individual, matching Kemp's 

description, who introduced himself as "Robert Kemp" and wore a 

windbreaker embroidered "Bob" and a "Cohasset Golf Club" cap. 

Kemp asked Werner if he wanted to "fool around." They walked to 

a remote area where Kemp paid Werner thirty dollars so that Kemp 

could perform oral sex on him. Kemp "began to blow" Werner, but 

Werner could not get an erection because Kemp "didn't turn [him] 

on." Werner testified, "I then proceeded to masturbate myself, 
11

and he did the same to himself." Prior to the sex act, Kemp 

offered Werner a maintenance job. They met again, by chance, a 

week later at another rest area. Werner explained that he did 

not pursue the job opportunity because he knew that Kemp would 

demand sex "all the time."

c. Rebuttal evidence. The Commonwealth called several 

witnesses on rebuttal. Kemp's wife testified that they were 

married for fourteen years and had three children, ages five, 

nine, and twelve. She had no suspicions that her husband was 

gay. A seventeen year old club employee testified that Kemp did 

not proposition him and that he never observed Kemp supply the 

defendant with alcohol. In addition, a State police trooper, 

who interviewed Werner before trial, testified to Werner's prior 

inconsistent statements. Werner told the officer that the 

incident took place "sometime in September of 1981," and that 

the man introduced himself as "Bob" (not "Robert Kemp"). 

Describing the encounter, Werner stated that Kemp offered to 

fellate him in exchange for twenty dollars. Werner did not want 

to have oral sex with Kemp, so they "struck a bargain" for Kemp 

to masturbate in Werner's presence for the fee of twenty 

dollars.

2. Prior proceedings. A grand jury returned indictments 

charging the defendant with murder in the first degree, G. L. 

c. 265, § 1, and armed robbery, G. L. c. 265, § 17. Following a 
12

nine-day trial, a Superior Court jury convicted the defendant of 

murder in the first degree and acquitted him of armed robbery. 

On direct appeal, this court exercised its authority under G. L. 

c. 278, § 33E, and ordered the verdict reduced to murder in the 

second degree. See McDermott, 393 Mass. at 459, 461.

On August 3, 2004, the defendant filed his first motion for 

a new trial, alleging that the trial judge's malice and 

provocation instructions impermissibly shifted the burden of 

proof. The motion judge denied the defendant's request for 

postconviction relief, which was affirmed by the Appeals Court 

in an unpublished decision in 2006. See Commonwealth v. 

McDermott, 65 Mass. App. Ct. 1112 (2006). This court denied the 

defendant's application for further appellate review. See 446 

Mass. 1104 (2006).

The defendant, in October 2020, filed his second motion for 

a new trial, and a motion to stay execution of his sentence.4 He 

subsequently, in March 2021, filed a motion for alternative 

relief, requesting a reduction to manslaughter under Mass. R. 

Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). On May 

4 A Superior Court judge denied the defendant's motion to 

stay the execution of his sentence, in which the defendant 

sought release due to the dangers of COVID-19. See Commonwealth

v. McDermott, 488 Mass. 169, 170 (2021). A single justice of 

the Appeals Court affirmed the denial of that motion, based on 

the defendant's serious flight risk, and we upheld that order. 

Id. at 170, 172.
13

26, 2022, the motion judge denied the defendant's second motion 

for a new trial and his motion to reduce the verdict. The 

defendant filed a timely appeal from the decision, and we 

allowed his petition for direct appellate review.

Discussion. 1. Standard of review. The defendant did not 

object to the prosecutor's closing argument, the contested jury 

instructions, or most of the disputed cross-examination at 

trial. The defendant also did not raise any of these issues in 

his direct appeal or in his first motion for a new trial. In 

these circumstances, we review to determine whether any of the 

alleged errors created a substantial risk of a miscarriage of 

justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 

(2002); Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 

444 Mass. 72 (2005), citing Commonwealth v. LeFave, 430 Mass. 

169, 174 (1999).

A substantial risk of a miscarriage of justice exists where 

we have "a serious doubt whether the result of the trial might 

have been different had the error not been made." Azar, 435 

Mass. at 687, quoting LeFave, 430 Mass. at 174. This standard 

of review considers "(1) the strength of the Commonwealth's 

case, (2) the nature of the error, (3) the significance of the 

error in the context of the trial, and (4) the possibility that 

the absence of an objection was the result of a reasonable 

tactical decision" (citation and alteration omitted). 
14

Commonwealth v. Desiderio, 491 Mass. 809, 815-816 (2023). See 

Randolph, 438 Mass. at 297 ("Errors of this magnitude are 

extraordinary events and relief is seldom granted"); Azar, supra

(new trial based on unpreserved error is "extraordinary 

situation").

The Commonwealth contends that the defendant's appeal is 

"foreclosed" by this court's plenary review in 1984. That 

argument only goes so far. "Section 33E, the mechanism by which 

this court exercises plenary review of all convictions of murder 

in the first degree, provides this court with extraordinary 

powers to consider the whole case, both the law and the 

evidence, to determine whether there has been any miscarriage of 

justice" (quotations and citation omitted). Commonwealth v. 

Watt, 493 Mass. 322, 326 (2024). Reversible error is unlikely 

where "the defendant's conviction in a capital case has 

undergone the exacting scrutiny of plenary review under § 33E." 

Randolph, 438 Mass. at 297. See Commonwealth v. Watkins

(No. 1), 486 Mass. 801, 805, S.C., 486 Mass. 1021 (2021). 

Notwithstanding the court's exacting level of review, 

postconviction relief under the substantial risk of a 

miscarriage of justice standard is not entirely foreclosed. Id. 

"Although this court takes its § 33E review obligation seriously 

and conducts a thorough review to the best of its ability, no 

one is infallible. . . . [W]e must maintain a means of 
15

addressing the possibility of error and of grave and lingering 

injustice" (quotations and citations omitted). Id. See

Commonwealth v. Smith, 460 Mass. 318, 320 (2011).

2. Prosecutorial misconduct. We first consider whether 

the prosecutor's cross-examination and closing argument crossed 

the line that separates strong advocacy from prohibited 

misconduct. Most pointedly, the defendant asserts that the 

prosecutor convinced the jury to convict by "wield[ing] 

homophobic invective." He claims also that the prosecutor 

engaged in other prohibited tactics, including asking questions 

designed to badger or harass the defendant and playing to the 

jury's sympathy for the victim in the closing argument. 

Although the Commonwealth concedes that some of the prosecutor's 

tactics were improper, it contends that the defendant is unable 

to demonstrate a substantial risk of a miscarriage of justice

because of the overwhelming evidence of his guilt.5

5 The Commonwealth introduced the defendant's statements 

before the parole board to cast doubt on the truthfulness of his 

defense. In these proceedings, the defendant disavowed his 

trial testimony. He testified, in 2012 and 2019, that the selfdefense claim was a lie -- that is, that Kemp did not rape him,

and that the defendant's attorney procured Werner's testimony.

It would not be in the interest of justice, the Commonwealth 

argues, to grant the defendant a new trial considering his 

admission to fabricating a defense. The defendant objected to 

the consideration of the parole board evidence, contending that

the statements are irrelevant or of dubious value considering 

his incentive to mollify parole officials. See Commonwealth v. 

Clark, 528 S.W.3d 342, 347-348 (Ky. 2017) (expressing doubt over 
16

a. Cross-examination. A defendant who voluntarily takes 

the witness stand to testify on his own behalf is subject to 

"the ordinary rigors of proper cross-examination." Commonwealth

v. Rivera, 425 Mass. 633, 639 (1997). See Commonwealth v.

Santiago, 53 Mass. App. Ct. 567, 573 (2002). There are, 

however, limits to cross-examination. See Commonwealth v. 

Fahey, 99 Mass. App. Ct. 304, 309 (2021). Among those 

limitations: (1) "a prosecutor may not ask the defendant a 

question for which the prosecutor cannot reasonably expect the 

witness to provide an affirmative answer in order to communicate 

an impression . . . by innuendo"; (2) the defendant cannot be 

asked to assess the credibility of another witness; and (3) a 

prosecutor may not ask the defendant questions that only serve 

"to harass, annoy or humiliate" (quotation and citations 

omitted). Id. at 310.

reliability of admissions "induced solely by the yearning to be 

free"). Here, the motion judge found that the defendant's 

admissions "may be probative," and that such evidence "arguably 

take[s] some of the sting" out of the prosecutor's misconduct. 

We leave for another day the issue whether the Commonwealth may 

introduce admissions before the parole board in a motion for a 

new trial. Where, as here, the motion judge did not preside 

over the trial or conduct an evidentiary hearing, we review his 

decision de novo. Commonwealth v. Pope, 489 Mass. 790, 793-794

(2022). Thus, we rely on the trial transcripts and other 

documentary evidence, absent the parole board admissions, to 

determine whether the asserted error or errors created a 

substantial risk of a miscarriage of justice.
17

We first address the prosecutor's questions concerning the 

defendant's sexual orientation. To test the credibility of the 

defendant's version of the facts, the prosecutor asked the 

defendant, in essence, why he continued to work for Kemp if sex 

was a condition of employment. The defendant answered that Kemp 

continued to pay him thirty dollars for oral sex and "I guess I 

told [Kemp] it was all right, because he did it." The 

prosecutor then inquired into the defendant's sexual 

orientation:

Q.: "Did you ever have homosexual sex with other 

people -- "

A.: "No."

Q.: "-- before that?"

A.: "No."

Q.: "Any familiarity with homosexuals?"

A.: "No."

Q.: "Up to that point; are you sure?"

A.: "Yes."

Q.: "Did you ever hear of a place named 'Skippers'?"

A.: "No."

Q.: "Did you?"

A.: "No."

Following this exchange, defense counsel asked for a side 

bar conference. He informed the judge that the Commonwealth had 
18

not provided any pretrial discovery linking the defendant to 

"Skippers." Counsel requested an offer of proof "to see if that 

is fair cross-examination." The prosecutor explained that 

Skippers is a "homosexual bar," and that he had "soft 

information" that the defendant "may have been there." The 

trial judge did not accept the Commonwealth's offer of proof. 

He stated that "it certainly isn't appropriate to ask a question 

of a witness if you know, or if you understand that in the event 

that he answers in the negative, that you're not going to be 

able to show some evidence of it." He promised, "[a]t some 

point," to provide an appropriate jury instruction "with 

reference to that." The judge did not do so.

The prosecutor, as the Commonwealth now concedes, made 

inappropriate insinuations regarding the defendant's sexual 

orientation without foundation. It is error, as we explained in

Commonwealth v. Fordham, 417 Mass. 10, 20-21 (1994), for a 

prosecutor "to communicate impressions by innuendo through 

questions which are answered in the negative . . . when the 

questioner has no evidence to support the innuendo. A 

prosecutor may not conduct cross-examination in bad faith or 

without foundation" (quotations and citations omitted). See 

Commonwealth v. Trotto, 487 Mass. 708, 734 (2021); Commonwealth

v. Christian, 430 Mass. 552, 559-561 (2000), overruled on other 

grounds by Commonwealth v. Paulding, 438 Mass. 1 (2002).
19

Moreover, this line of questioning was premised on 

homophobic stereotyping. The Commonwealth suggested that 

tolerance of workplace sexual harassment varied according to 

sexual orientation. That is, according to the Commonwealth, a

heterosexual employee (as the defendant claimed to be through 

his counsel) would have quit. See Commonwealth v. Cadet, 473 

Mass. 173, 186 (2015), citing Mass. G. Evid. § 1113(b)(3)(C) 

note (2015) (biased questions raising racial, ethnic, or gender 

stereotypes inappropriate); Commonwealth v. Capone, 39 Mass. 

App. Ct. 606, 611 (1996) ("error for a prosecutor to make 

insinuations about a defendant's sexual orientation which are 

likely to prejudice a defendant").

The prosecutor also badgered the defendant during crossexamination by asking hostile and repetitive questions. See 

Commonwealth v. Johnson, 431 Mass. 535, 540 (2000). For 

example, the defendant testified that he shot blindly at Kemp. 

Expressing incredulity (given the number of well-placed gunshot 

wounds), the prosecutor asked, "You didn't see him while you 

were shooting him?" The defendant responded, "No, I wasn't 

looking at him." The prosecutor countered, "You're a pretty 

good shot." Later, the trial judge offered to "take the recess 

now and cool the court room down a little."

While we therefore agree with the motion judge that the 

prosecutor's insinuations and badgering were improper, not all
20

the motion judge's characterizations of the prosecutor's crossexamination are accurate. Specifically, the motion judge found

that the prosecutor "tempt[ed]" the defendant into commenting on 

the credibility of police officers. See Commonwealth v. 

Triplett, 398 Mass. 561, 567 (1986) (prosecutor baited defendant 

into calling his own mother, who offered different version of 

facts, liar); Fahey, 99 Mass. App. Ct. at 310 (prosecutor asked 

defendant, "So, you're telling the truth and no one else is?"). 

We disagree with this characterization of the testimony. The 

prosecutor asked:

Q.: "Now, you heard Lieutenant McGuinness testify before 

this jury, didn't you?"

A.: "Yes."

Q.: "And you heard Sergeant Rhodes of the Cohasset police 

testify also, correct?"

A.: "Yes."

Q.: "Do you remember Sergeant Rhodes saying that there 

were three empty casings in this weapon when he found it on 

the wall?"

A.: "Yes."

Q.: "How did that happen?"

[objection overruled]

A.: "I don't know."

Q.: "Well, how many times did you shoot Robert Kemp?"

A.: "I don't know."
21

Q.: "You heard Sergeant McGuinness testify that there were 

four casings in the vicinity of where the body was found. 

Do you remember that testimony?"

A.: "Yes."

Q.: "And that those four casings were fired from that gun? 

You heard that, didn't you?"

A.: "Yes."

Q.: "Didn't you shoot Robert Kemp when you had him in the 

ditch?"

A.: "No."

The defendant testified that he did not know how many 

rounds he fired. He also denied shooting Kemp in the wooded 

area. The prosecutor confronted the defendant with undisputed 

ballistics evidence, including the revolver's nine-shot capacity 

and the number of gunshot wounds and expended shell casings. 

The defendant was not asked whether the crime scene 

investigators lied. Referencing the testimony of those police 

officers, he was asked to explain how the nine-shot revolver was 

emptied, and to square his version of the facts with the shell 

casings recovered next to the body. "It is not improper for the 

prosecutor to point out, through this line of questioning, that 

there were inconsistencies between the defendant's testimony and 

that of [other witnesses], so long as the defendant was not 

asked to assess the credibility of the [witness's] testimony"

(quotation and citation omitted). Commonwealth v. Alphas, 430 

Mass. 8, 18-19 (1999). See Commonwealth v. Wright, 411 Mass. 
22

678, 687 (1992), S.C., 469 Mass. 447 (2014) (no error where 

questions "do not involve any direct request of [the defendant] 

to comment on the credibility of witnesses").

b. Closing argument. The prosecutor made two improper 

remarks in his closing argument. First, he played to the jury's 

potential bias against gay men by dismissing Werner as a "male 

prostitute," and telling the jury that Werner was "very proud of 

the fact he is gay. Fine. Great. That's not the issue here." 

See Commonwealth v. Tate, 486 Mass. 663, 674 (2021) (arguments

that invoked racial biases "grossly improper"); Commonwealth v. 

Rivera, 52 Mass. App. Ct. 321, 328 (2001) (argument "went too 

far" by prejudicial name-calling). Second, the prosecutor 

inappropriately appealed to the jury's sympathy for the victim. 

He argued, "[The defendant] had to come up with something; he 

had to. It's an overwhelming case. He murdered him, and he 

robbed him. Unfortunately for the memory of Robert Kemp, think 

of what this man has come up with." See Commonwealth v. Bois, 

476 Mass. 15, 34 (2016) ("Prosecutorial appeals to sympathy

. . . obscure the clarity with which the jury would look at the 

evidence and encourage the jury to find guilt even if the 

evidence does not reach the level of proof beyond a reasonable 

doubt" [quotation omitted]).

c. Substantial risk of miscarriage of justice. The 

Commonwealth concedes prosecutorial misconduct. The motion 
23

judge aptly observed, "If [the d]efendant's entitlement to a new 

trial turned solely on whether the prosecutor engaged in 

misconduct at his original trial, the [c]ourt would allow [the 

d]efendant's [s]econd [m]otion. That, however, is not the 

standard." Applying the standard of review for unpreserved 

claims, we conclude that the defendant has not demonstrated a 

substantial risk of a miscarriage of justice. On these facts, 

notwithstanding improprieties in the prosecutor's crossexamination and closing argument, this case does not warrant a 

new trial. See Randolph, 438 Mass. at 297.

We first examine the strength of the Commonwealth's case.

See Desiderio, 491 Mass. at 815-816; Azar, 435 Mass. at 687. 

The record supports the conclusion that there was overwhelming 

evidence of guilt. The motion judge found, and we agree, that

"[n]otwithstanding anything that the prosecutor did or said 

at [the d]efendant's trial, it remains undisputed that [the 

d]efendant shot Kemp ten to eleven times -- including five 

times to the face and head -- with a nine-shot [r]evolver. 

Because [the d]efendant fired ten or eleven shots into 

Kemp's body with a nine-shot weapon, it also is true that 

[the d]efendant undeniably had the opportunity and the 

presence of mind, in the midst of killing Kemp, to stop and 

reload the [r]evolver at least once."

There was also strong evidence rebutting the defendant's 

narrative of events. For example, he testified that he shot 

Kemp while falling, and did not aim the revolver or even see 

Kemp before pulling the trigger. Yet he fired multiple fatal

shots, striking Kemp in vital areas of his body. He also 
24

testified that he did not rifle through Kemp's pockets, leading 

to an unbelievable "grave robber" argument that teenagers 

partying in the woods spotted Kemp's body in the ditch overnight

and stole his wallet and jewelry.6 Further, the defendant's 

testimony that he did not shoot Kemp in the ditch was 

contradicted by the presence of shell casings near the body.

We next examine the second and third Desiderio and Azar

factors. It goes without saying that cross-examination or a 

closing argument that plays on a juror's potential homophobic 

bias has no place in a criminal trial. Whether misconduct leads 

to a new trial on collateral review, however, depends on the 

nature of the errors and the significance of the errors in the 

6 The jury acquitted the defendant of armed robbery and 

felony-murder. See McDermott, 393 Mass. at 457 (jury "clearly"

rejected felony-murder). These verdicts, however, do not 

foreclose a finding that the defendant rummaged through Kemp's 

pockets and stole the petty cash box. It is a question of when 

the defendant formed the intent to steal, not whether he stole 

from Kemp. The judge instructed the jury that the Commonwealth 

was required to prove the defendant formed an intent to steal 

prior to the shooting, not afterward. He instructed:

"[S]peaking just hypothetically, depending upon how you might 

view the evidence, certainly if he took property from Robert 

Kemp or from his body after the fact of a killing and did not 

have the specific intent at the time of the killing to rob from 

him, then that crime would not be armed robbery." See 

Commonwealth v. Roderick, 429 Mass. 271, 277 (1999) (felonymurder applies where killing occurred during commission or 

attempted commission of predicate felony).
25

context of the trial. See Desiderio, 491 Mass. at 816; Azar,

435 Mass. at 687.7

The defense alleged that Kemp hid his sexual orientation

and used his position as golf course manager to take advantage 

of younger men. In so doing, the defense appealed to homophobic 

tropes. What began as "homosexual seduction," as defense 

counsel stated, "resulted in a degrading[] defilement, and on 

November 20[], the homosexual rape of Billy McDermott." Defense 

counsel emphasized that the defendant was a "real [heterosexual]

boy" attacked by a larger, older gay man. As evidence of the 

defendant's heterosexuality, his girlfriend testified that he 

"became aroused" in response to "heavy petting." Defense 

counsel argued, "I'm glad I called [the defendant's girlfriend], 

because I think it really rounds out what we are dealing with 

here, a boy." Defense counsel further stated that Werner's 

testimony, where Werner described consensual sex for a fee with 

Kemp, "contextualizes the horror of Billy McDermott."

The prosecutor was entitled to challenge the defendant's 

version of the facts and Werner's testimony concerning Kemp's 

alleged undisclosed sexual orientation. This was a delicate 

task given the danger of importing bias into the trial. He 

7 This case does not raise the fourth factor, i.e., "the 

possibility that the absence of an objection was the result of a 

reasonable tactical decision." Desiderio, 491 Mass. at 816.
26

failed. We conclude, however, that the prosecutor's "Skippers"

question and reference to Werner's sexual orientation did not 

create a substantial risk of a miscarriage of justice. The 

"Skippers" question was part of the prosecutor's ham-handed 

attempt to counter the defendant's narrative that an innocent

"real" heterosexual boy, cornered in the bathroom, justifiably 

resorted to deadly force to repel an attack by an older, gay 

man. In response to the prosecutor's question whether he was 

familiar with "Skippers," the defendant answered "no," the 

prosecutor moved on to another topic, and the judge effectively 

curtailed further inquiry. See Christian, 430 Mass. at 560-562 

(prosecutor questioned defendant "at some length" about 

incriminating statements made to nontestifying jailhouse

informant drawing "consistent denials"). Similarly, in a 

lengthy closing argument, the derisive comments about Werner's 

sexual orientation were made in passing amid appropriate 

argument challenging Werner's testimony.

We next consider the prosecutor's inappropriate appeal to 

sympathy. A prosecutor is afforded leeway to humanize the 

proceedings but not in a way that plays on the jury's sympathy 

and emotions. Commonwealth v. Kolenovic, 478 Mass. 189, 201 

(2017). The absence of an objection, although not dispositive, 

is "some indication that the tone, manner, and substance of the 

now challenged aspects of the prosecutor's argument were not 
27

unfairly prejudicial" (citation omitted). Commonwealth v. 

Duguay, 430 Mass. 397, 404 (1999). Here, the judge instructed 

the jury that closing arguments are not evidence and that the 

jurors were required to decide the case "without reference to 

any ignoble motive" such as "fear, prejudice, pity, [or] 

sympathy." See Commonwealth v. Kee, 449 Mass. 550, 560-561 

(2007) (general jury instructions may mitigate prejudice). The 

potential damage to Kemp's reputation as a "family man" was 

front and center in the trial. He was either a rapist targeting 

young male employees, who hid his sexual orientation from his 

friends and family, or a murder victim unfairly sullied by the 

defense. "[I]t is unlikely that the prosecutor's argument had 

an inflammatory effect on the jury beyond that which naturally 

would result from the evidence presented" (quotation and 

citation omitted). Commonwealth v. Moore, 489 Mass. 735, 754

(2022). Finally, the prosecutor's aggressive questioning, in 

context, did not create a substantial risk of a miscarriage of 

justice. Having carefully reviewed the transcripts, we agree 

with the Commonwealth's contention that the length of the crossexamination was in many ways attributable to the prosecutor's 

legitimate goal of rebutting the defendant's statements during 

direct examination point by point. Further, the harsh tone of 

the prosecutor's questioning is not the type of error leading to 

a new trial in this procedural posture.
28

3. Jury instructions. The defendant next contends that 

the trial judge provided erroneous self-defense, sudden 

provocation, and sudden combat jury instructions. In brief, he 

claims that the self-defense instructions "failed to place the 

burden squarely and continuously upon the Commonwealth," and 

that the sudden provocation and sudden combat instructions were 

incomplete. The motion judge rejected these claims. He 

concluded that these issues were "fully litigated and addressed 

by both [this court] and the Appeals Court in the course of [the 

d]efendant's prior appeals. In other words, all of the 

requirements for the application of direct estoppel have been 

met."8

As a threshold issue, we consider whether the defendant 

should be estopped directly from challenging the jury 

instructions where the issues were decided in his first motion 

for a new trial and subsequent appeal. "Under the principle of 

direct estoppel, a judge is precluded from reviewing an issue 

that previously was litigated and determined, if such 

determination was essential to the conviction, and the defendant 

8 We are not convinced that the burden of proving selfdefense was litigated and determined in the direct appeal. The

McDermott court addressed the narrow self-defense issue whether 

the judge was required to instruct the jury that an individual 

may use deadly force to resist rape (as distinct from force used 

to resist death or serious injury). See McDermott, 393 Mass. at

459-460.
29

had an opportunity to obtain review of the determination" 

(quotations and alterations omitted). Commonwealth v. Pfeiffer, 

492 Mass. 440, 447 (2023), quoting Commonwealth v. Arias, 488 

Mass. 1004, 1006 (2021).

The defendant's first motion for a new trial challenged 

impermissible burden-shifting language within the voluntary 

manslaughter instruction. The Commonwealth conceded that the 

judge failed to instruct the jury that the Commonwealth had to 

prove the absence of provocation beyond a reasonable doubt. In 

denying the motion for a new trial, the first motion judge found 

that the unobjected-to erroneous jury instruction did not create 

a substantial risk of a miscarriage of justice. "[I]t would 

have been better practice," she stated, "for the judge to 

instruct that the Commonwealth had to prove the absence of 

provocation beyond a reasonable doubt." She reasoned that the 

defendant was not prejudiced by the error because reading "the 

charge as a whole" (including the self-defense instruction) the 

judge repeatedly emphasized "that the Commonwealth bore the 

burden of proof, that it had to prove all elements beyond a 

reasonable doubt, and that the defendant bore no burden."

On the defendant's appeal from the denial of his first 

motion for a new trial, the Appeals Court considered the 

defendant's argument that "the judge incorrectly instructed the 

jury on the Commonwealth's burden of proof on provocation, which 
30

created a substantial risk of a miscarriage of justice." 

McDermott, 65 Mass. App. Ct. 1112. The judge gave the jury the 

same burden-shifting instruction found to be prejudicial error 

in Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998). "The 

correct rule is that, where the evidence raises the possibility 

that the defendant may have acted on reasonable provocation, the 

Commonwealth must prove, and the jury must find, beyond a 

reasonable doubt that the defendant did not act on reasonable 

provocation." McDermott, supra, quoting Acevedo, supra. The 

Appeals Court went on to decide whether the Acevedo error 

created a substantial risk of a miscarriage of justice requiring 

a new trial. Affirming the denial of the defendant's first 

motion for a new trial, the Appeals Court stated, "The error, 

which the Commonwealth concedes, did not create a substantial 

risk of a miscarriage of justice because the trial judge gave a 

lengthy and correct instruction on self-defense, in which he 

properly allocated to the Commonwealth the burden to prove the 

absence of self-defense." McDermott, supra. The Appeals Court

further noted, "The judge gave a lengthy instruction on selfdefense, in which he properly, forcefully, and repeatedly 

allocated to the Commonwealth the burden to prove the absence of 

self-defense." Id.

In this appeal, the defendant is estopped from relitigating 

the issue whether the judge properly allocated the burden of 
31

proof in the self-defense instruction. The claim was "actually 

litigated and determined" by the Appeals Court, and "such 

determination was essential to the [defendant's] conviction" 

(citations omitted). Pfeiffer, 492 Mass. at 447. The 

defendant's argument that the Appeals Court's statements 

concerning the correctness of the self-defense instruction "is 

nonbinding dicta" is unavailing. Jury instructions are 

considered as a whole "to determine the probable impact, 

appraised realistically . . . upon the jury's factfinding 

function" (quotation and citation omitted). Commonwealth v. 

Teixeira, 490 Mass. 733, 742 (2022). Where the Appeals Court 

determined that the jury instructions, in their entirety, did 

not shift the burden of proof, the defendant is estopped from 

relitigating this claim.

Direct estoppel, however, does not bar the defendant from 

challenging jury instructions unrelated to the allocation of the 

burden of proof. As such, we next consider the defendant's 

arguments that the trial judge failed to explain or define 

adequately the terms "sudden provocation" and "sudden combat."

Because the issue is raised for the first time in this appeal, 
32

we examine any alleged errors for a substantial risk of a 

miscarriage of justice.9

The judge instructed:

"[M]anslaughter takes into account the human frailties of 

human beings. . . . It allows the jury to consider on the 

totality of the evidence whether or not the perpetrator of 

the crime was overcome by provocation at the time that he 

committed the crime. If so, was he so overcome? Was he so 

overcome with human emotion and human frailty and human 

weakness based upon a provocation that he, indeed, acted 

not out of response to deliberation, not out of response to 

malice but out of response to human weakness, but, 

nevertheless, committed an unlawful killing?"

In response to the jury's request to redefine manslaughter, 

the judge provided a supplemental instruction:

"[The law] recognizes the weaknesses of human beings and 

their frailties and their responses to sudden provocation 

or sudden assaults in the heat of passion of mankind. If 

the jury find[] that there is, indeed, an unlawful killing 

of another . . . but that that killing was after an assault 

9 The defendant, citing Commonwealth v. Harrington, 379 

Mass. 446, 450 (1980), and Commonwealth v. Barros, 425 Mass. 

572, 576 (1997), contends also that the judge erred by failing 

to instruct the jury that intoxication mitigates the subjective 

prong of self-defense. The argument is not supported by either 

case. Harrington, supra, established that self-defense requires 

evidence that a defendant reasonably and actually believed he 

was in imminent danger of death or serious bodily harm. In 

Barros, supra, the court did not reach the issue whether a judge 

is required to instruct the jury that they may consider 

intoxication as it relates to the defendant's actual belief that 

it was necessary to resort to deadly force. It was not 

necessary to resolve the issue, the Barros court concluded, 

because the evidence did not warrant a self-defense instruction. 

Id. In any event, the absence of such an instruction would not 

have created a substantial risk of a miscarriage of justice. If 

the jury had credited the defendant's version of events, he 

would have had a reasonable and actual belief that deadly force 

was necessary to protect himself from Kemp's sexual assault 

regardless of his sobriety.
33

or a provocation upon the [d]efendant which resulted in the 

[d]efendant reacting in a heat of passion where judgment 

is, in effect, clouded by the heat of passion, then in fact 

in that situation the notion of malice that can be inferred 

from the intentional use of deadly force is negated, and 

the malice does not exist. In that situation the killing, 

rather than being murder, is manslaughter."

The defendant maintains that the court "should have, but 

did not convey, the precise and complete definitions of 

provocation and sudden combat that this [c]ourt had established 

before this trial." A more thorough definition, he argues, 

would have informed the jury that "sudden provocation included 

anger, fright and excitement as valid states of mind in this 

context to warrant a manslaughter verdict." See Commonwealth v. 

Walden, 380 Mass. 724, 728 (1980). See also Commonwealth v. 

Hodge (No. 2), 380 Mass. 858, 865 (1980) (manslaughter is 

homicide committed "in heat of blood, a perturbation of mind 

palliating the intent to inflict injury. The fatal blow not 

purposeful but is the result of chance and frailty of 

humanity"). This was a critical mistake, he argues, because 

Kemp initiated sudden combat by kicking the defendant and there 

was insufficient time between the defendant's justifiable anger 

and the shooting for "cool reflection."

Here, the instruction required the jury to consider whether 

the defendant's "judgment was clouded" so that he was "overcome 

with human emotion and human frailty and human weakness based on 

provocation." We conclude that any error in the provocation 
34

instruction could not have created a substantial risk of a 

miscarriage of justice. The theory of the defense was that the 

defendant shot Kemp to fend off a brutal forcible rape. Defense 

counsel argued that the defendant, on cross-examination, was 

forced to relive the "torture" of November 20, 1981. The 

defendant, he argued, was alone, drunk, and afraid. "He was in 

pain, both from his knees and from his rectum. He was confused, 

degraded, demeaned, raped, and cornered." The jury would 

commonly understand that Kemp's alleged sexual assault 

constituted an act of provocation in the manner described by the 

judge.

4. Life with possibility of parole sentence. The 

defendant contends that a sentence of life with the possibility 

of parole, imposed on a teenager, violates the prohibition 

against cruel or unusual punishment secured by the Eighth 

Amendment and art. 26. Relying on Miller v. Alabama, 567 U.S. 

460, 472 (2012), and Graham v. Florida, 560 U.S. 48, 73 (2010), 

he reasons that all former juvenile offenders, convicted of 

homicide or other serious offenses, are entitled to 

individualized sentencing hearings. In the defendant's view, a 

mandatory life sentence for murder in the second degree, even 

with the possibility of parole, "is constitutionally infirm due 

to the automatic process behind its imposition."
35

The defendant's Federal constitutional challenge fails 

because there is no Eighth Amendment prohibition against 

sentencing a juvenile offender to life with the possibility of 

parole. The United States Supreme Court, in a series of 

decisions spanning roughly twenty years, has recognized that 

children constitutionally are different from adults for purposes 

of sentencing. In Roper v. Simmons, 543 U.S. 551, 578 (2005),

the Court held that capital punishment of offenders who were 

under the age of eighteen when their crimes were committed 

violates the "cruel and unusual punishment" clause of the Eighth 

Amendment. Following Roper, the Court examined the 

constitutionality of sentencing juveniles to "the second most 

severe penalty permitted by law" (citation omitted), Graham, 560 

U.S. at 69 -- life imprisonment without parole. The Graham

Court held that for "a juvenile offender who did not commit 

homicide[,] the Eighth Amendment forbids the sentence of life 

without parole." Id. at 74. Two years later, in Miller, 567 

U.S. at 479, the Court held that the Eighth Amendment's 

probation against cruel and unusual punishment proscribes the 

imposition of a mandatory sentence of life without the 

possibility of parole for individuals under the age of eighteen

at the time they committed murder. "[B]y making youth (and all 

that accompanies it) irrelevant to imposition of that harshest 

prison sentence, such a scheme poses too great a risk of 
36

disproportionate punishment." Id. Then, in Montgomery v. 

Louisiana, 577 U.S. 190, 212 (2016), the Court determined that 

Miller's substantive holding barring life without parole for all 

but the rarest of juvenile offenders was retroactive to cases on 

collateral review. Most recently, in Jones v. Mississippi, 141 

S. Ct. 1307, 1320-1321 (2021), the Court decided that the Eighth 

Amendment did not require a judge to make separate factual 

finding of permanent incorrigibility before imposing a 

discretionary sentence of life without parole on a juvenile 

homicide offender.

Because the defendant was sentenced to life with the 

possibility of parole after fifteen years, see G. L. c. 279, 

§ 24, his sentence does not violate juvenile-specific Eighth 

Amendment protections. It is well settled that a mandatory 

sentence to anything less than life without the possibility of 

parole is not prohibited by Miller. See Montgomery, 577 U.S. at 

212 (State may remedy Miller violation by permitting juvenile 

homicide offenders to be considered for parole, rather than 

resentencing them); Miller, 567 U.S. at 489 (mandatory lifetime 

incarceration without possibility of parole "regardless of . . . 

age and age-related characteristics" violates ban on cruel and 

unusual punishment); Graham, 560 U.S. at 75 ("State is not 

required to guarantee eventual freedom to a juvenile offender"

but must provide "some meaningful opportunity to obtain release 
37

based on demonstrated maturity and rehabilitation"). See also

Brown v. Precythe, 46 F.4th 879, 886 (8th Cir. 2022) ("Miller

factors . . . apply as a constitutional matter only to a judge's 

decision at sentencing whether to impose a term of life 

imprisonment without parole for a juvenile homicide offender"); 

Atkins v. Crowell, 945 F.3d 476, 478 (6th Cir. 2019), cert. 

denied, 140 S. Ct. 2786 (2020) ("Miller's holding simply does 

not cover a lengthy term of imprisonment that falls short of 

life without parole"); United States v. Sparks, 941 F.3d 748, 

754 (5th Cir. 2019), cert. denied, 140 S. Ct. 1281 (2020)

("Miller has no relevance to sentences less than [life without 

parole]").

The defendant's art. 26 argument fares no better. In 

Commonwealth v. Concepcion, 487 Mass. 77, 86, cert. denied, 142 

S. Ct. 408 (2021), we considered whether art. 26 prohibits a 

juvenile, convicted of murder in the first degree, from serving 

a sentence of life with the possibility of parole after twenty 

years. There, the defendant maintained that the combination of 

his youth and intellectual disabilities rendered his mandatory 

sentence disproportionate to his conviction. Id. at 86. The 

court concluded that the sentencing scheme, "a product of postDiatchenko I developments in our case law," did not violate art. 

26. Id. at 87-88. See Diatchenko v. District Attorney for the 

Suffolk Dist., 466 Mass. 655, 671 (2013) (Diatchenko I), S.C.,
38

471 Mass. 12 (2015). In so holding, we considered the gravity 

of the defendant's conviction of murder in the first degree and 

that art. 26, in extraordinary cases, allows a judge to sentence 

a juvenile to terms with parole eligibility exceeding fifteen 

years. Concepcion, supra at 88. See Commonwealth v. LaPlante, 

482 Mass. 399, 405 (2019); Commonwealth v. Perez, 477 Mass. 677, 

685-686 (2017), S.C., 480 Mass. 562 (2018). A sentence of life 

with the possibility of parole "would not in itself prevent [the 

defendant] from having 'a meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation.'" 

Concepcion, supra at 88-89, quoting Diatchenko I, supra at 674. 

A twenty-year period before a juvenile becomes eligible for 

parole is not so lengthy as to be the functional equivalent of 

life without parole. Concepcion, supra at 88.

We reach the same result in this case. The defendant's 

sentence to life with the possibility of parole after fifteen 

years does not violate rights secured by art. 26. Contrary to 

the defendant's argument, art. 26 does not prohibit the 

imposition of a mandatory sentence. Concepcion, 487 Mass. at 

87. See Commonwealth v. Brown, 466 Mass. 676, 686 (2013) 

("[N]either Miller nor [Diatchenko I] precludes mandatory 

sentencing for all juveniles in all circumstances. The holding 

of Miller was cabined specifically to the need for discretion in 

imposing the 'particular penalty' of life without parole").
39

The defendant's sentence provides a "meaningful opportunity 

to obtain release based on demonstrated maturity and 

rehabilitation." Graham, 560 U.S. at 75. The effective date of 

his sentence was November 25, 1981, and after the reduction of 

his sentence to murder in the second degree, he became eligible 

for parole fifteen years later on November 24, 1996. He has 

been denied parole at least five times. See McDermott vs. 

Massachusetts Parole Bd., Mass. Super. Ct., No. 1985CV00788 

(Worcester County Jan. 6, 2020). The defendant appealed from 

the April 2019 denial of his parole application, contending that 

the parole board failed to consider "the distinctive attributes 

of youth" in determining whether he was likely to reoffend. See

Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 

12, 23 (2015) (Diatchenko II). The Appeals Court affirmed a 

Superior Court judge's allowance of the parole board's cross 

motion for judgment on the pleadings. See McDermott v. 

Massachusetts Parole Bd., 101 Mass. App. Ct. 1117 (2022). The 

court determined that "the full administrative record, including 

the transcript of the hearing before the board and the questions 

asked by board members, reflected a thoughtful and sufficient 

consideration of the [Miller and Diatchenko II] factors." Id.

Accordingly, there was no violation of either the 

defendant's Federal or State constitutional rights.
40

Conclusion. The order dated May 26, 2022, denying the 

defendant's second motion for a new trial, is affirmed.

So ordered.