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SJC-10398

COMMONWEALTH vs. MICHAEL JACKSON.

Suffolk. January 9, 2015. - April 16, 2015.

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

Homicide. Firearms. Jury and Jurors. Practice, Criminal, 

Instructions to jury, Empanelment of jury, Public trial, 

Failure to object, Waiver, Capital case. Jury and Jurors.

Duress. Constitutional Law, Jury, Public trial, Waiver of 

constitutional rights. Waiver.

Indictments found and returned in the Superior Court 

Department on March 27, 2002. 

The cases were tried before Patrick F. Brady, J., and a 

motion for a new trial, filed on March 18, 2010, was heard by 

him.

Emanuel Howard for the defendant.

Helle Sachse, Assistant District Attorney, for the 

Commonwealth.

Afton M. Templin, for Committee for Public Counsel 

Services, amicus curiae, submitted a brief.

CORDY, J. After a jury trial, the defendant, Michael 

Jackson, was convicted of murdering Jose Lane, the unlawful 
2

possession of a firearm, and the unlawful possession of 

ammunition. At trial, the defendant had requested that the 

judge instruct the jury that duress was an available defense to 

intentional murder, which the judge declined to do. Prior to 

sentencing, the defendant orally moved for a new trial and for a 

mistrial when it was learned that one of the jurors was not a 

United States citizen. Both motions were denied. On March 16, 

2006, the judge imposed a mandatory sentence of life in State 

prison on the defendant's conviction of murder in the first 

degree, a concurrent sentence of four and one-half years in 

State prison for the unlawful possession of a firearm, and a 

concurrent sentence of one year in a house of correction for the 

unlawful possession of ammunition.

On March 22, 2010, the defendant filed a motion for a new 

trial under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 

(2001), on three grounds, the first two of which were rejected 

without a hearing on December 2, 2010,1 and the third denied on 

May 3, 2011, after an evidentiary hearing.2 The denial of this 

motion was consolidated with the defendant's direct appeal.

 

1 The defendant claimed error in the inclusion of a 

noncitizen on the jury and challenged the constitutionality of a 

sentence of life imprisonment for a person under the age of 

eighteen.

2 The defendant claimed violation of his right to a public 

trial pursuant to the Sixth Amendment to the United States 

Constitution because three family members and supporters were 
3

In his appeal, the defendant contends that the judge erred 

in denying his request to instruct the jury on duress, that the 

inclusion of a noncitizen juror on the jury constituted 

structural error requiring a new trial, and that his right to a 

public trial pursuant to the Sixth Amendment to the United 

States Constitution was violated when his fiancée, sister, and 

step-grandmother were asked to leave the court room during a 

portion of the empanelment process. For the reasons stated 

below, we find no reversible error, and discern no basis to 

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

set aside the verdict of murder in the first degree. Therefore, 

we affirm the defendant's convictions.

1. Background. We recite the facts in the light most 

favorable to the Commonwealth, while reserving certain details 

for discussion in conjunction with the issues raised.

a. The killing. At approximately 10:30 P.M. on January 

24, 2002, Samuel Dew was standing on the sidewalk near the steps 

leading up to the front porch of the home of the victim's sister

in the Dorchester section of Boston.

3 The victim was standing on 

the first landing leading to the porch, sharing a cigar with 

 

apparently asked by a court officer to leave the court room when 

the jury venire (consisting of seventy-nine jurors) were brought 

in for empanelment.

3 The victim stayed at his sister's home four or five days

each week.
4

Dew, who noticed a person walking on the street toward them. 

When the person was about an arm's length away, Dew recognized 

him as the defendant, Michael Jackson,

4 someone he had met a 

dozen or so times in the course of Dew's work at the Dorchester 

Reporting Center, a Department of Youth Services facility. The 

three exchanged pleasantries, and afterward, the defendant

turned as if to walk away. The defendant then reached behind 

his back, brought out what Dew described as a shiny metal 

object, and pointed it at the victim. When Dew realized the 

object was a gun, he turned and ran away from the house. He 

last saw the victim turning and running up the stairs toward the 

porch. He heard gunshots go off behind him. Boston police and 

emergency medical technicians soon arrived and took the victim 

to the Boston Medical Center, where he died five minutes after 

arrival.

The next day, Dew learned that the police wanted to speak 

to him. He called and arranged to meet with them at police 

headquarters. On arrival, investigators asked him to look at a 

series of eight photographs, including a photograph of Michael 

Jackson. Dew picked out the defendant's photograph and said he 

was "a hundred percent" that the person depicted was the shooter 

whom he knew by the name of "Mike D."

 

4 Dew knew the defendant by his nickname, "Mike D."
5

That same day, Boston police Sergeant Greg Long, based on 

information the police had received, set up surveillance in 

front of another address in Dorchester. At approximately 

6:15 P.M., Sergeant Long and fellow officers began following a 

black GMC Yukon sport utility vehicle that left that location. 

They stopped the vehicle and removed the defendant from the back 

seat, arrested and handcuffed him, and brought him to the 

homicide unit at the Boston police headquarters. The defendant 

was seventeen years of age.

Officer Paul McLaughlin, who conducted the defendant's 

interrogation, read the defendant the Miranda warnings and 

obtained a signed Miranda waiver before speaking to him for an 

unrecorded period of time. One hour and forty minutes later, 

the defendant agreed to give a recorded statement.5 During the 

statement, the defendant admitted to shooting the victim and 

related events that had occurred the day before the shooting 

 

5 This statement was the subject of a pretrial motion to 

suppress. After an evidentiary hearing, that motion was denied 

by a judge other than the trial judge. The voluntariness of the 

statement was an issue subsequently raised and extensively 

litigated at the trial. Dr. Paul Zeizel, a clinical 

psychologist, was called by the defendant and testified 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. A humane practice instruction was 

given to the jury by the trial judge. Although not raised as an 

issue on appeal, we have reviewed the denial of the motion to 

suppress and the manner in which the voluntariness issue was 

handled at trial, and we find no error.
6

when he and a friend, Riccardo Green, were at a cemetery. Green 

informed the defendant that there were people who thought the 

defendant was "ratting"

6 to the police, and the only way to avoid 

"catch[ing] consequences" associated with being a rat was for 

the defendant to kill the victim, who Green claimed had killed 

another individual, Rasheed Fountain, several years before.7

b. Public trial. On the day of jury empanelment, the 

defendant's fiancée, sister, and step-grandmother were in the 

court room. Before the venire were brought in, a court officer 

asked the three individuals to leave the court room. They 

followed the officer's orders and were not present in the court 

room during the empanelment process. There was no objection.

An evidentiary hearing was held on the claim in the

defendant's second motion for a new trial of an alleged 

violation of his Sixth Amendment right to a public trial. At 

the conclusion of the hearing, the judge issued a written 

memorandum of decision finding that the number of jurors in the 

venire exceeded the seating capacity of the court room. He 

concluded that the brief closure of the court room was de 

minimis so as to not equate to a closure in the constitutional 

 

6 The defendant had testified during a grand jury proceeding 

implicating a gang member in an unrelated murder.

7 The defendant described Rasheed Fountain as a father 

figure to him. Seven years prior to the facts that give rise to 

this case, the defendant witnessed Rasheed Fountain's murder,

allegedly at the hands of the victim in the present case.
7

sense and that, even if it had not been de minimis, the facts 

concerning the empanelment satisfied the criteria of Waller v. 

Georgia, 467 U.S. 39 (1984).

c. Makeup of the jury. On March 7, 2006, the day 

following the jury's verdicts but before sentencing, the judge 

informed counsel that he believed one of the jurors was not a 

United States citizen.8 The judge conducted a hearing on March 

14, 2006, during which the juror told the court that he was not 

a United States citizen. Defense counsel orally moved for a 

mistrial and for a new trial; both motions were denied.

2. Discussion. "When this court reviews a defendant's 

appeal from the denial of a motion for a new trial in 

conjunction with his direct appeal from an underlying conviction 

of murder . . . , we review both under G. L. c. 278, § 33E." 

Commonwealth v. Burgos, 462 Mass. 53, 59, cert. denied, 133 

S. Ct. 796 (2012).

a. The defense of duress. The defendant argues that the 

judge erred by not instructing the jury on the defense of 

duress. The defendant claims that juveniles (age seventeen or 

younger) should be allowed to invoke duress as a defense to 

intentional murder, notwithstanding the fact that the defense is 

barred from use by adults. Commonwealth v. Vasquez, 462 Mass. 

 

8 When the judge went to thank the jury for their service, 

one juror asked the judge if he might be able to recommend to 

the juror an attorney for assistance on an immigration matter.
8

827, 835 (2012). Because this issue was properly raised below,

we review for prejudicial error. See Commonwealth v. Graham, 62 

Mass. App. Ct. 642, 651 (2004).

Discussion about the defendant's request for a duress 

instruction began during the Commonwealth's case. When the 

judge indicated that he did not believe that duress was a 

defense to intentional murder,

9 defense counsel made what 

amounted to an offer of proof as to the witnesses he might call 

if duress were a defense, and declared that they would testify 

as to the difficulties of the defendant's upbringing and 

circumstances. These witnesses were not called by the 

defendant, and, at the close of evidence, the judge definitively 

denied defense counsel's request for a duress instruction. 

In Vasquez, 462 Mass. at 835, we concluded that duress was 

not an available defense to intentional murder.10 Nonetheless, 

the defendant claims that it was error to foreclose the defense 

to a juvenile offender because of the fundamental differences 

between adults and juveniles. In Vasquez, we had no need to 

specify our holding as foreclosing duress as a defense to 

 

9 The judge was also the trial judge in Commonwealth v. 

Vasquez, 462 Mass. 827 (2012).

10 In coming to this conclusion, we noted that duress is not 

an available defense to intentional murder under the common law 

of any State and "[e]very State appellate court, except one,"

that has addressed this application of duress has determined 

that it does not justify intentional murder. Vasquez, 462 Mass. 

at 834 & n.5.
9

intentional murder for both adult and juvenile offenders. We 

take this opportunity to clarify that our holding does foreclose 

such a defense for both classes of offender.

Duress has been defined as "a present, immediate and 

impending threat of such a nature as to induce a well-founded 

fear of death or of serious bodily injury if the criminal act is 

not done," with no reasonable and available chance at escape, 

and where no person of reasonable firmness could have acted 

otherwise in the circumstances. See Commonwealth v. Robinson, 

382 Mass. 189, 199 (1981). The defendant argues that it was

error to subject juveniles to the same strictures of 

reasonableness as an adult. In support of this contention, the 

defendant cites several recent United States Supreme Court cases 

that have acknowledged some inherent differences between adults 

and juveniles, and have altered the treatment of juveniles in 

certain aspects of the criminal justice system. See Miller v. 

Alabama, 132 S. Ct. 2455 (2012) (life sentences for juveniles 

without possibility of parole); J.D.B. v. North Carolina, 131 S. 

Ct. 2394 (2011) (custodial interrogation); Graham v. Florida, 

560 U.S. 48 (2010) (life imprisonment without possibility of 

parole for nonhomicide offense); Roper v. Simmons, 543 U.S. 551 

(2005) (death penalty for juveniles).

Even were we to agree that the standard of reasonableness 

we would apply to an adult confronted with the fear of death or 
10

serious bodily injury might be somewhat different and more 

forgiving for a person seventeen years of age or younger, this 

would not justify a duress defense for intentional murder. As 

we discussed in Vasquez, the rationale of such a defense is not

that a defendant faced with a threat of harm loses his or her 

mental capacity to commit the crime, or that the defendant has 

not engaged in a voluntary act. "Rather, it is that, even 

though he has done the act the crime requires and has the mental 

state which the crime requires, his conduct which violates the 

literal language of the law is justified because he has thereby 

avoided a harm of greater magnitude" (citation omitted). 

Vasquez, 462 Mass. at 833. We reject the "choice of evils"

rationale to justify intentional murder even where the murderer 

is a juvenile, because in an intentional killing, the threat of 

harm to the juvenile claiming duress, even the threat of death,

is no greater than the harm to the victim being killed.

Aside from our rejection of the defense of duress generally 

in cases of intentional murder, the elements of the defense were 

not made out in this case. There was no evidence that the 

threat against the defendant was "immediate" or that he could 

not escape or avoid the harm that he alleges was threatened. 

Nor does this case present such extraordinary and rare 

circumstances that might justify a reduction in the defendant's 

guilt under G. L. c. 278, § 33E. Id. at 835. Although the 
11

defendant experienced a difficult childhood, was acquainted with 

individuals with gang affiliations, and alleged that he had been 

told he would face personal consequences if he did not execute 

the victim, these are not the type of rare circumstances that 

would warrant relief under G. L. c. 278, § 33E.

The defendant's actions are directly contrary to the 

purpose of and policy behind the duress defense. His choice of 

evils justifying the killing of a third party to spare harm to 

himself is no different from that of the defendant in Vasquez. 

The Supreme Court cases relied on by the defendant are not to 

the contrary. Because the judge properly applied the law, there 

was no error.

b. Public trial. The defendant seeks a new trial on a 

second theory, that his Sixth Amendment right to a public trial 

was violated because the court room was closed for a period of 

sixty to ninety minutes during jury empanelment. It is well 

settled that violation of the Sixth Amendment right to a public 

trial is considered structural error. See United States v. 

Marcus, 560 U.S. 258, 263 (2010); Commonwealth v. Cohen (No. 1),

456 Mass. 94, 105 (2010). However, it is possible that some 

closures are so limited in scope or duration that they are 

deemed de minimis, and thus do not implicate the Sixth 

Amendment. See, e.g., Peterson v. Williams, 85 F.3d 39, 44 (2d

Cir.), cert. denied, 519 U.S. 878 (1996). We have held that 
12

"the closure of a court room for the entire empanelment process 

[was] not de minimis," notwithstanding that it lasted only 

seventy-nine minutes, Commonwealth v. Morganti, 467 Mass. 96, 

97, cert. denied, 135 S. Ct. 356 (2014), and that partial 

closures are not per se de minimis. Cf. Cohen (No. 1), 456 

Mass. at 110-111 (concluding partial closure not de minimis 

where voir dire was closed on three of five days and six friends 

and supporters of defendant were excluded).

Where a defendant timely raises and preserves a meritorious 

claim of structural error, this court "will presume prejudice 

and reversal is automatic." Commonwealth v. LaChance, 469 Mass. 

854, 857 (2014). However, the right to a public trial, like any 

structural right, can be waived. See Cohen (No. 1), 456 Mass. 

at 105-106; Mains v. Commonwealth, 433 Mass. 30, 33 & n.3 

(2000) (deficient reasonable doubt instruction is structural 

error subject to waiver); Commonwealth v. Edward, 75 Mass. App. 

Ct. 162, 173 (2009).

The defendant did not raise an objection when the court 

room was closed, arguably because neither he nor his counsel was 

aware of the closure. The issue also was not raised in his 

first motion for a new trial that preceded sentencing. The 

defendant contends that his claim cannot be procedurally waived 

when neither counsel nor the defendant knew of the occasion for 

objection. This argument is at odds with our recent decision in 
13

Commonwealth v. Wall, 469 Mass. 652 (2014). In that case, the 

defendant's uncle was prevented from entering the court room

during jury empanelment. Id. at 672. Defense counsel did not 

know of the court room closure and therefore did not object.

Id. at 672 n.24. Nonetheless, we concluded that the "right to a 

public trial may be procedurally waived whenever a litigant 

fails to make a timely objection." Id. at 672. Cf. LaChance, 

469 Mass. at 858-859 (when Sixth Amendment violation is 

unpreserved due to ineffective assistance of counsel and 

attacked on collateral grounds, defendant must show prejudice 

notwithstanding structural nature of claim). As such, we 

conclude that the defendant procedurally waived his Sixth 

Amendment right to a public trial during the empanelment 

process.

Despite the fact that the claim is procedurally waived, we 

still analyze the claim pursuant to G. L. c. 278, § 33E, to 

determine whether a closure would subject him to a substantial 

likelihood of a miscarriage of justice. The defendant has 

failed to advance any argument or articulate any facts that 

would support such a finding.

11

 

11 See, e.g., Commonwealth v. Dyer, 460 Mass. 728, 737 

(2011), cert. denied, 132 S. Ct. 2693 (2012) (declining to order 

new trial where "defendant point[ed] to no factors suggesting . 

. . that a substantial likelihood of a miscarriage of justice 

occurred"); Commonwealth v. Randolph, 438 Mass. 290, 297-298

(2002), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002)
14

c. Noncitizen on the jury. The requirement that jurors 

must be United States citizens is established statutorily by 

G. L. c. 234A, § 4. However, the same chapter of the General 

Laws contains an explicit savings clause which states:

"[T]he fact that a juror shall be found to be not qualified 

under [G. L. c. 234A, § 4] . . . shall not be sufficient to 

cause a mistrial or to set aside a verdict unless objection 

to such irregularity or defect has been made as soon as 

possible after its discovery or after it should have been 

discovered and unless the objecting party has been 

specially injured or prejudiced thereby."

G. L. c. 234A, § 74.

While the defendant objected on being informed by the judge

that a noncitizen had been on the jury, thus satisfying the 

first prong of the exception to the savings clause, the 

defendant has not shown any prejudice. Rather, he urges this 

court to consider a violation of G. L. c. 234A, § 4, to be 

structural error and thus as requiring no showing of prejudice. 

The defendant relies on Vasquez v. Hillery, 474 U.S. 254 (1986)

(Hillery), to support this contention. In Hillery, the Supreme 

Court affirmed the holding of the United States Court of Appeals 

for the Ninth Circuit that the respondent had been denied equal 

protection because the grand jury that indicted him were

composed entirely of white jurors, despite the fact that there 

were qualified African-Americans available. Id. at 256-257. In 

 

(finding no "serious doubt whether the result of the trial 

might have been different had the error not been made"); 

Commonwealth v. Horton, 434 Mass. 823, 832-833 (2001).
15

so holding, the Supreme Court reasoned that "discrimination in 

the grand jury undermines the structural integrity of 

the criminal tribunal itself, and is not amenable to harmlesserror review." Id. at 263-264. Hillery is inapposite. It does 

not contemplate the facts that are at issue in this case. The 

structural error analysis involved racial discrimination in 

excluding minority members from the grand jury. The holding

makes no reference to the inclusion of jurors deemed unqualified 

for jury service by State law in a petit jury. Even the cases 

cited by Hillery as examples of structural error do not 

encompass, let alone mention, the improper qualification of a 

juror included on a petit jury.12 The defendant points us to no 

Massachusetts authority that would require us to consider this 

error structural, and such a position runs directly counter to 

the statutory language of § 74 and this court's precedent.13

 

12 See, e.g., Davis v. Georgia, 429 U.S. 122 (1976) (death 

sentence cannot be carried out where prospective juror excluded 

from jury for cause for merely expressing scruples against death 

penalty, rather than being irrevocably committed to vote against 

it); Sheppard v. Maxwell, 384 U.S. 333, 363 (1966) (reversing 

denial of habeas relief when trial judge failed to protect 

defendant from inherently prejudicial publicity); Tumey v. Ohio, 

273 U.S. 510, 535 (1927) (reversal required when judge has 

financial interest in conviction, despite lack of indication 

that bias influenced decisions).

13 See, e.g., Commonwealth v. Sires, 370 Mass. 541, 545-546 

(1976) (defendant not entitled to new trial where one juror 

discovered to be distantly related to victim and defendant, 

because defendant failed to show prejudice); Commonwealth v. 

Delle Chiaie, 323 Mass. 615, 618-619 (1949), quoting 
16

The present case bears striking resemblance to the case of

Kohl v. Lehlback, 160 U.S. 293 (1895), in which the Supreme 

Court determined that the inclusion of a juror who was not a 

citizen of the United States was a defect, but was not "an 

infraction of the Constitution of the United States." Id. at 

300. The Supreme Court surmised that if the defendant were to 

show prejudice then he may be entitled to a new trial, but the 

mere inclusion of the noncitizen juror did not "den[y] due 

process of law." Id. at 303. We glean no language in the 

Massachusetts Declaration of Rights that would require a 

conclusion different from that reached under the Federal 

Constitution.

The defendant does not address how he was prejudiced by a 

noncitizen juror deciding his case, and in the absence of 

prejudice, the ordering of a new trial is unwarranted under 

G. L. c. 234A, § 74.

d. G. L. c. 278, § 33E. We have reviewed the record in 

accordance with G. L. c. 278, § 33E, to determine whether any 

 

Commonwealth v. Wong Chung, 186 Mass. 231, 237-238 (1904) ("If 

. . . it is discovered after a verdict that a disqualified 

person has joined in the decision, the interests of justice 

require that the irregularity or accident shall be treated like 

other irregularities. . . . If in the opinion of the presiding 

judge, the disqualification of a juror has operated injuriously, 

and has tended to the return of an erroneous verdict, or has 

otherwise worked injustice, a new trial should be granted"); 

Wong Chung, supra (defendant not entitled to new trial where 

discovered that one juror may have been stripped of citizenship 

rights).
17

basis exists to set aside or reduce the verdict of murder in the 

first degree or to order a new trial. In that review we 

discerned nothing in the defendant's conviction that suggests

such would be appropriate. Accordingly, we decline to exercise 

our authority.

Judgments affirmed.

Order denying motion for a

 new trial affirmed.