author: LOWY, J.

text:
    COMMONWEALTH v. Franke GOMEZ.
    SJC-12437
    Supreme Judicial Court of Massachusetts, Middlesex..
    Argued April 2, 2018 Decided August 10, 2018
    Dana Alan Curhan, Boston, for the defendant.
    Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.
    David Rangaviz, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
    Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      As is our practice, we spell the defendant's name as it appears in the indictments.

   LOWY, J.

In response to a reported question from a Superior Court judge, we decide whether a defendant may enter a guilty plea expressly conditioned on his or her right to appeal from the denial of a motion to suppress evidence, otherwise known as a conditional guilty plea. Although Mass. R. Crim. P. 12, as appearing in 470 Mass. 1501 (2015), does not specifically authorize a conditional guilty plea and nothing in the language of the rule or its amendments contemplates this approach, neither does the rule or any statute prohibit such a plea. In response to the reported question, we exercise our superintendence power to conclude that a conditional guilty plea is permissible if it is entered with the consent of the court and the Commonwealth and identifies the specific ruling from which the defendant intends to appeal. In light of our decision, we ask this court's standing advisory committee on the rules of criminal procedure (standing advisory committee) to propose a suitable amendment to rule 12 to delineate the requirements for conditional guilty pleas. In the interim, we instruct judges and parties to follow the approach taken in Fed. R. Crim. P. 11(a)(2).

1. Background. a. Factual summary. After a hearing on the defendant's motion to suppress, the motion judge found the following facts. On October 6, 2014, a Framingham police sergeant and detective stopped for dinner at a restaurant in Framingham. Inside, they saw two men who were known to them, the defendant and another man who they believed had an outstanding warrant for his arrest. They then determined that the man did not have an outstanding warrant, and left the restaurant to return to their unmarked police cruiser.

From the cruiser, the officers continued to observe the defendant as he left the restaurant and met a man later identified as Alcides Zimmerman. The defendant reached into his front right pants pocket; Zimmerman then did the same, and handed the defendant some money. The officers saw the defendant touch Zimmerman's hand two times, after which Zimmerman drove away in his motor vehicle. The officers followed Zimmerman's vehicle for one mile before executing an investigatory stop. The sergeant asked Zimmerman, "Where is it?" and Zimmerman responded, "In my pocket." Zimmerman reached his hand toward his pocket, but the sergeant grabbed it and then reached his own hand into Zimmerman's pocket, retrieving a small glassine bag with a white powdery substance.

The officers arrested Zimmerman and then returned to the restaurant where they had seen the defendant. They entered the restaurant with two additional officers. The defendant was standing with another person, counting a large amount of money. As the officers approached, the defendant reached toward his waistband. The officers each grabbed one of the defendant's arms and escorted him from the restaurant. The defendant was "sweating profusely and appeared to be weak in the knees." He moved and shook his body as if trying to remove something from his waist. The officers pat frisked him and found a loaded handgun. On searching him further, they found ammunition and seven glassine bags, one of which had a substance resembling heroin. The defendant was then arrested.

b. Prior proceedings. The defendant was indicted for narcotics and firearm offenses. He moved to suppress the evidence seized following the search of his person. A Superior Court judge denied the motion after an evidentiary hearing; the judge reasoned that the officers had conducted a proper investigatory stop because they had reasonable suspicion that a crime was being committed, and also reasonably suspected that when they approached the defendant, he was reaching for a weapon. Prior to the scheduled trial date, the defendant "indicated he wishe[d] to plead guilty and avoid the costs of trial, provided he [were] able to secure appellate review of the ruling on the motion to suppress and to withdraw his plea if he prevail[ed] on appeal." He argued that "the outcome of the trial is a fait accompli, effectively determined by the suppression ruling." The Commonwealth was initially amenable, but ultimately would not agree to a conditional guilty plea. A second Superior Court judge stayed the trial date and reported the case to the Appeals Court in order to obtain an answer to the following question:

"To avoid a trial that is otherwise only required to preserve appellate review of the denial of a dispositive pretrial motion, may the Superior Court, with the Commonwealth's agreement or over the Commonwealth's objection, accept a defendant's guilty plea and sentence the defendant expressly conditioned on [the] defendant's rights to appeal the denial of the specific dispositive pretrial motion and to withdraw his/her plea if defendant prevails on appeal?"

We transferred the case from the Appeals Court to this court on our own motion.

2. Discussion. Ordinarily, a guilty plea "by its terms waives all nonjurisdictional defects." Commonwealth v. Cabrera, 449 Mass. 825, 830, 874 N.E.2d 654 (2007). "This is because a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case" (citation, quotations, and alterations omitted). Commonwealth v. Fanelli, 412 Mass. 497, 500, 590 N.E.2d 186 (1992). Accordingly, this court has repeatedly denied a defendant's attempt to appeal from the denial of a suppression motion after he or she has entered a guilty plea. See, e.g., Cabrera, 449 Mass. at 830-831, 874 N.E.2d 654 ; Commonwealth v. Quinones, 414 Mass. 423, 432, 435, 608 N.E.2d 724 (1993) ; Garvin v. Commonwealth, 351 Mass. 661, 663-664, 223 N.E.2d 396, cert. denied, 389 U.S. 13, 88 S.Ct. 119, 19 L.Ed.2d 12 (1967). These decisions, however, were made in the context of unconditional guilty pleas. See generally Cabrera, supra ; Quinones, supra ; Garvin, supra. See also United States v. Limley, 510 F.3d 825, 827 (8th Cir. 2007) (pleas are presumptively unconditional). This court has not yet considered whether a defendant may preserve his or her right to appeal from the denial of a motion to suppress at the time the defendant tenders a guilty plea.

a. Rule 12. Rule 12, which governs guilty pleas, is silent regarding conditional guilty pleas. The rule permits a defendant to enter a guilty plea, with or without an agreement with the Commonwealth, and details the procedural requirements in each circumstance. With regard to pleas that involve an agreement with the Commonwealth, Mass. R. Crim. P. 12 (b) (5) (A) expressly permits a plea agreement conditioned on a particular sentence and charge concessions. The judge may accept or reject such a plea agreement. If the judge accepts the plea agreement and the defendant's plea, Mass. R. Crim. P. 12 (d) requires the judge to sentence the defendant according to the terms of the plea agreement. Mass. R. Crim. P. 12 (d) (4) (A). Therefore, rule 12 only explicitly recognizes pleas conditioned on dispositional terms, such as sentences and charge concessions, as outlined in Mass. R. Crim. P. 12 (b) (5) (A). The language of rule 12 also differs significantly from Fed. R. Crim. P. 11(a)(2), which has expressly permitted conditional guilty pleas since 1983. See Advisory Committee Notes to Rule 11 (1983), Federal Criminal Code and Rules, Rules of Criminal Procedure, at 68-69 (Thomson Reuters 2018 rev. ed.). The Federal rule states: "With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea." Fed. R. Crim. P. 11(a)(2).

Where rule 12 expressly differs from the comparable Fed. R. Crim. P. 11, we have declined to interpret rule 12 according to Federal standards. For example, in Commonwealth v. Dean-Ganek, 461 Mass. 305, 312, 960 N.E.2d 262 (2012), we recognized that, " '[i]n contrast with Fed. R. Crim. P. 11, our rule 12 does not identify any plea agreement where the recommendation shall bind the judge,' and Fed. R. Crim. P. 11(c)(3) requires a judge at the plea hearing to accept or reject a 'plea agreement' while our rule 12 (c) (5) (B) requires a judge at the plea hearing to accept or reject 'the plea or admission,' not the plea agreement." See Commonwealth v. Wilson, 430 Mass. 440, 442-443, 720 N.E.2d 464 (1999) (rejecting Commonwealth's argument that Mass. R. Crim. P. 12 [f], which prevents statements made in course of plea negotiations from being admissible against accused, be interpreted to exclude only statements from government attorneys, as is case under Federal rules).

It is doubtful, then, that rule 12 can reasonably be interpreted to allow for conditional pleas, particularly because there is already an existing statute and rule that allows for a defendant to seek leave from a single justice of this court to take an interlocutory appeal from the denial of a motion to suppress. See G. L. c. 278, § 28E ; Mass. R. Civ. P. 15 (a) (2), as appearing in 474 Mass. 1501 (2016). At the same time, "[a] defendant only may apply for leave to pursue such an appeal, and a single justice of this court, as a matter of discretion, may allow such an application if the single justice determines 'that the administration of justice would be facilitated.' " Commonwealth v. Ringuette, 443 Mass. 1003, 1004, 819 N.E.2d 941 (2004), quoting Mass. R. Crim. P. 15 (a) (2). As rule 12 does not expressly prohibit conditional guilty pleas, we consider the approaches adopted in other jurisdictions, as well as the practical implications of permitting such pleas.

b. Other jurisdictions. The majority of other States and the District of Columbia allow conditional pleas in some form. Five of these States have enacted statutes or rules specifically exempting a motion to suppress evidence from the general rule that a defendant forfeits certain appellate rights when entering a plea of guilty or no contest. As the Commonwealth notes, most States that permit conditional pleas do so by statute or rule. See Neuhaus v. People, 2012 CO 65, ¶ 9, 289 P.3d 19. Just over one-half of those jurisdictions modeled their statutes or rules on Fed. R. Crim. P. 11(a)(2), which requires the consent of the court and the government and also requires that the defendant specify the pretrial motion from which he or she intends to appeal. Most of the remaining States that have departed from the wording of the Federal rule nonetheless require the consent of the court or of the prosecutor (or both), and that the defendant specify the motion from which he or she seeks to appeal.

A handful of State courts have also recognized conditional guilty pleas "despite the absence in those jurisdictions of any authorizing court rule or statute." State v. Sery, 758 P.2d 935, 939-940 (Utah Ct. App. 1988). Alaska and Louisiana currently permit conditional pleas exclusively by judicial decision, and at least five other States (Alabama, Florida, Michigan, New Mexico, and Utah) first recognized conditional guilty pleas by judicial decision and thereafter promulgated court rules permitting such practices. See id. ; Neuhaus, 2012 CO 65, ¶ 9A n.5, 289 P.3d 19. Conditional guilty pleas "were also accepted by two [F]ederal circuits long before the 1983 adoption of Fed. R. Crim. P. 11(a)(2)." Sery, supra at 939-940, citing United States v. Moskow, 588 F.2d 882 (3d Cir. 1978), and United States v. Burke, 517 F.2d 377 (2d Cir. 1975).

c. Practical considerations. Without the availability of a conditional guilty plea and due to the limited availability of interlocutory review, a defendant typically must proceed to trial in order to preserve his or her appellate rights, even if the defendant desires only to appeal from a particular pretrial ruling. See, e.g., Fanelli, 412 Mass. at 500, 590 N.E.2d 186. As the United States Supreme Court has recognized, this is a "completely unnecessary waste of time and energy." Lefkowitz v. Newsome, 420 U.S. 283, 292, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975). See Advisory Committee Notes to Rule 11 (1983), Federal Criminal Code and Rules, Rules of Criminal Procedure, supra at 68 ("a defendant who has lost one or more pretrial motions will often go through an entire trial simply to preserve the pretrial issues for later appellate review. This results in a waste of prosecutorial and judicial resources, and causes delay in the trial of other cases .... These unfortunate consequences may be avoided by the conditional plea device ...").

The Commonwealth argues that there is no need for conditional guilty pleas because of the availability of stipulated evidence trials. In such proceedings, a defendant stipulates "that the Commonwealth's witnesses [will] testify in the manner asserted by the prosecutor," and thereby expedites the trial and purportedly saves resources. See Commonwealth v. Garcia, 23 Mass.App.Ct. 259, 264-265, 501 N.E.2d 527 (1986). This procedure is disfavored. See Commonwealth v. Castillo, 66 Mass.App.Ct. 34, 37, 845 N.E.2d 403 (2006) ; Commonwealth v. Babcock, 25 Mass.App.Ct. 688, 691, 521 N.E.2d 1065 (1988). See also E.B. Cypher, Criminal Practice and Procedure § 24:13, at 293 n.1 (4th ed. 2014) (collecting cases). This is because a trial based on stipulated evidence is incapable of supporting a conviction without a comprehensive colloquy itemizing the rights surrendered, confirming that the defendant understands the significance of the rights he or she gives up in a stipulated trial, and ensuring that the defendant intelligently and voluntarily relinquishes those rights. See Commonwealth v. Monteiro, 75 Mass.App.Ct. 280, 287-288, 913 N.E.2d 900 (2009), citing Commonwealth v. Stevens, 379 Mass. 772, 776, 400 N.E.2d 261 (1980).

Specifically, in a stipulated evidence trial, the trial judge should "question the defendant whether he recognizes that 1) he is entitled to confront witnesses against him; 2) the Commonwealth has the burden of proving the offense beyond a reasonable doubt; 3) he may be giving up the right not to incriminate himself; 4) he is giving up the right to cross-examine; and 5) ... he is acknowledging evidence likely to lead to a finding of guilty" (citation omitted). Monteiro, 75 Mass.App.Ct. at 289, 913 N.E.2d 900. At the same time, the judge must take care not to ask whether the defendant is pleading guilty. See Castillo, 66 Mass.App.Ct. at 37 n.4, 845 N.E.2d 403. If the judge elicits a guilty plea during such a proceeding, the defendant will have waived the very appellate rights he or she sought to preserve through a stipulated evidence trial. The defendant also must be careful not to "stipulate[ ] to the truth of facts which constitute[ ] all the elements of the offences charged and [are] conclusive of guilt," in order to avoid constructively pleading guilty and thereby waiving his or her appellate rights. Garcia, 23 Mass.App.Ct. at 265, 501 N.E.2d 527. See Commonwealth v. Brown, 55 Mass.App.Ct. 440, 448-449, 771 N.E.2d 214 (2002).

Not infrequently, the parties or the judge makes mistakes during the colloquy at a stipulated evidence trial. See, e.g., Monteiro, 75 Mass.App.Ct. at 288, 913 N.E.2d 900 (trial judge failed to warn defendant of right to cross-examination, to call own witnesses, and to confrontation, and of right not to incriminate himself); Castillo, 66 Mass.App.Ct. at 37, 845 N.E.2d 403 ("There is nothing in this record that demonstrates that the defendant was aware of the significance of a trial based on stipulated evidence or that he was aware of any constitutional rights he was waiving");

Brown, 55 Mass.App.Ct. at 448-449, 771 N.E.2d 214 ("The stipulation was tantamount to a guilty plea.... The jury waiver colloquy that [the defendant] received did not contain critical elements that must be included in a guilty plea colloquy").

Even when conducted correctly, however, a stipulated evidence trial constitutes a flawed procedure. A stipulated evidence trial is confusing to the defendant and to members of the public, as it is a legal fiction rather than an actual trial. "Although there is a remote theoretical possibility that the defendant may be acquitted, the reality is that factual guilt is a foregone conclusion. After all, neither a reasonable defendant nor a prosecutor would choose to pursue a stipulated bench trial (or guilty plea) if the evidence is doubtful." People v. Gonzalez, 313 Ill.App.3d 607, 617, 246 Ill.Dec. 509, 730 N.E.2d 534 (2000). "A stipulated bench trial is, in reality, nothing more than a glorified guilty plea that wastes precious judicial resources and is likely to be misunderstood ...." Id. at 618, 246 Ill.Dec. 509, 730 N.E.2d 534.

As a practical matter, a stipulated jury trial is available to a defendant to preserve appellate review from a denial of a motion to suppress evidence. In reality, the required colloquy turns out to be difficult to do, and even if the colloquy is sufficient, it does not necessarily provide a realistic alternative to a conditional plea. For example, for a defendant, a stipulated evidence trial presents a more limited opportunity to negotiate a sentence or charge concessions. For a prosecutor, the procedure is rife with procedural pitfalls that "expose[ ] a conviction to recantation and subsequent proceedings far more onerous than the original administration of the warning." Monteiro, 75 Mass.App.Ct. at 288, 913 N.E.2d 900.

A conditional guilty plea, on the other hand, facilitates plea bargaining. See Gonzalez, 313 Ill.App.3d at 618, 246 Ill.Dec. 509, 730 N.E.2d 534. See also United States v. Mezzanatto, 513 U.S. 196, 208, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995) ("Indeed, as a logical matter, it simply makes no sense to conclude that mutual settlement will be encouraged by precluding negotiation over an issue that may be particularly important to one of the parties to the transaction. A sounder way to encourage settlement is to permit the interested parties to enter into knowing and voluntary negotiations without any arbitrary limits on their bargaining chips"). Moreover, victims of crime may derive vindication from a defendant's willingness to concede guilt, even if the defendant preserves limited issues for appeal; without the option of a conditional guilty plea, fewer defendants will have incentives to plead guilty.

The Commonwealth argues that a conditional guilty plea undermines the finality of a defendant's plea. This concern is not without merit. On the other hand, conditional guilty pleas inevitably result in more guilty pleas. A defendant who may want to agree to an offer by the Commonwealth if his or her motion to suppress is denied, but does not plead guilty because the defendant wants to first litigate that motion to suppress, would have another option -- a conditional plea -- if the Commonwealth and the court agreed to the procedure. In addition, while a conditional guilty plea "does not have the complete finality of an unconditioned plea, ... it still results in a judgment of conviction, not an interlocutory order. That judgment is as final as any conviction after trial that might be reversed on direct appeal." See Sery, 758 P.2d at 939. See also Note, Conditional Guilty Pleas, 93 Harv. L. Rev. 564, 573 (1980) (Conditional Guilty Pleas).

Some courts in other jurisdictions have determined that it is inconsistent to plead guilty and yet preserve certain appellate rights. See, e.g., Hooten v. State, 212 Ga.App. 770, 773, 442 S.E.2d 836 (1994). Even an unconditional guilty plea does not foreclose all appellate rights, however. See, e.g., Commonwealth v. Lavrinenko, 473 Mass. 42, 55-56, 38 N.E.3d 278 (2015) (ineffective assistance of counsel claim can survive guilty plea); Commonwealth v. Negron, 462 Mass. 102, 105, 967 N.E.2d 99 (2012) ("defendant is not barred by his guilty plea from bringing an appeal or collateral challenge to his conviction on the ground that the conviction violated the prohibition against double jeopardy").

Any suggestion that the allowance of conditional guilty pleas would overwhelm the appellate courts seems unlikely. While some increase in the courts' caseload is certainly possible, the requirement that a defendant obtain the consent of the Commonwealth and the court will generally ensure that frivolous issues are not reserved for appeal. In any event, "allowing conditional pleas would undoubtedly reduce claims of ineffective assistance of counsel that frequently arise in appeals from stipulated bench trials." Gonzalez, 313 Ill.App.3d at 619, 246 Ill.Dec. 509, 730 N.E.2d 534. And, in addition, "[e]xperience with conditional pleas in New York and California indicates that a relatively small number of additional appeals are generated; no 'flooding' of appellate courts has resulted." See Conditional Guilty Pleas, supra at 573.

The Federal rules include certain safeguards to protect against many of the Commonwealth's concerns, namely (1) requiring the consent of the court and the government, (2) requiring that the reservation of appellate rights be made in writing at the time the plea is entered, and (3) requiring the defendant to specify at the time the plea is entered which pretrial motion he or she intends to appeal. Fed. R. Crim. P. 11(a)(2). See Note, "A Pious Fraud": The Prohibition of Conditional Guilty Pleas in Rhode Island, 17 Roger Williams U. L. Rev. 480, 498 (2012).

Though not required by the express language of Fed. R. Crim. P. 11 (a) (2), Federal Courts of Appeals that have reached the issue have interpreted the Federal rule to require that the pretrial motion from which a defendant seeks to appeal be dispositive. See, e.g., United States v. Bundy, 392 F.3d 641, 647 (4th Cir. 2004) ; United States v. Wise, 179 F.3d 184, 186 (5th Cir. 1999) ;

United States v. Bentz, 21 F.3d 37, 42 (3d Cir. 1994) ; United States v. Yasak, 884 F.2d 996, 999 (7th Cir. 1989) ; United States v. Wong Ching Hing, 867 F.2d 754, 758 (2d Cir. 1989) ; United States v. Carrasco, 786 F.2d 1452, 1454 (9th Cir. 1986), overruled on other grounds by United States v. Jacobo-Castillo, 496 F.3d 947 (9th Cir. 2007). "The essential problem created by use of the conditional guilty plea when the issues reserved are not dispositive is that further judicial proceedings will be required if the defendant prevails on appeal," resulting in further delay. See Walters v. State, 197 P.3d 1273, 1278 (Wyo. 2008). Accord State v. Madera, 198 Conn. 92, 101, 503 A.2d 136 (1985). Additionally, nondispositive issues may not be capable of resolution without a trial record, and the lack of such a record on appeal would make it impossible for a court to conduct harmless error analysis. See Walters, supra at 1278-1279. In light of these considerations, it shall be within the motion judge's discretion to require that the motion from which the defendant seeks to appeal be dispositive.

We therefore exercise our superintendence powers, G. L. c. 211, § 3, in deciding that a conditional guilty plea is permissible, so long as it is entered with the consent of the Commonwealth and the court, and the defendant specifies the pretrial motion from which he or she seeks to appeal at the time the plea is entered. We ask this court's standing advisory committee to propose a rule reflecting these requirements for this court's consideration, taking into consideration other issues related to the adoption of this procedure. See Commonwealth v. Hanright, 465 Mass. 639, 648-649, 989 N.E.2d 883 (2013). In the interim, we adopt the approach taken by Federal courts concerning conditional guilty pleas. See id.

3. Conclusion. We answer the reported question, "Yes," temporarily adopting the procedures utilized in Federal court under Fed. R. Crim. P. 11(a)(2), until Mass. R. Crim. P. 12 is amended consistent with this opinion. We ask this court's standing advisory committee on the rules of criminal procedure to propose an amendment to rule 12 accordingly. The matter is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

      We acknowledge the amicus brief submitted by the Committee for Public Counsel Services.

      The defendant was charged with possession of a firearm without a license, G. L. c. 269, § 10 (a ) ; possession of a loaded firearm, G. L. c. 269, § 10 (n ) ; possessing ammunition without a firearms identification card, G. L. c. 269, § 10 (h ) ; distribution of cocaine, G. L. c. 94C, § 32A (c ) ; possession of cocaine with the intent to distribute, G. L. c. 94C, § 32A (c ) ; and possession of heroin with the intent to distribute, G. L. c. 94C, § 32 (a ). He also faced sentencing enhancements for being a second-time offender, G. L. c. 269, § 10 (d ), and under the armed career criminal statute, G. L. c. 269, § 10G (b ).

      See Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004) ("If, prior to trial ... a question of law arises which the trial judge determines is so important or doubtful as to require the decision of the Appeals Court, the judge may report the case so far as necessary to present the question of law arising therein. If the case is reported prior to trial, the case shall be continued for trial to await the decision of the Appeals Court"); Mass. R. A. P. 5, as amended, 378 Mass. 930 (1979) ("A report of a case for determination by an appellate court shall for all purposes under these rules be taken as the equivalent of a notice of appeal. Whenever a case or any part of it is reported after decision or verdict, the aggrieved party [as designated by the lower court] shall be treated as the appellant. Whenever a case or any part of it is reported without decision or verdict, the plaintiff in a civil action or the defendant in a criminal case shall be treated as the appellant").

      The Commonwealth mentions in passing in its brief that the issue before us is moot, because "the Commonwealth does not agree to a guilty plea conditioned on reserving the defendant's right to appeal the denial of his motion to suppress." Our answer to the reported question in this case may render this issue moot, since we conclude that conditional guilty pleas are permissible only with the consent of the court and the Commonwealth. "However, we make an exception to the general rule against hearing moot claims in some cases because of the public interest involved and the uncertainty and confusion that exist" (citation, quotations, and alterations omitted). See Matter of the Liquidation of Am. Mut. Liab. Ins. Co., 440 Mass. 796, 805 n.13, 802 N.E.2d 555 (2004). "We are most willing to make this exception where, as here, the parties have fully briefed and argued the issue." Id.

      The defendant notes that Mass. R. Crim. P. 12 (b) (5) (B), as appearing in 470 Mass. 1501 (2015), permits guilty pleas "conditioned on ... plea agreement[s] other than one described in [r]ule 12 (b) (5) (A)." These types of plea agreements are treated as "non-binding, joint recommendation[s]." Reporters' Notes (Jan. 2015) to Rule 12 (b) (5), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1575 (2016). As explained infra, however, the language and history of rule 12 as a whole indicate that it cannot be reasonably interpreted to contemplate conditional guilty pleas.

      Prior to the amendment of Fed. R. Crim. P. 11 in 1983, the Federal Courts of Appeals were divided on the permissibility of conditional guilty pleas. See United States v. DePoli, 628 F.2d 779, 781 n.1 (2d Cir. 1980) (collecting cases).

      See Cal. Penal Code §§ 1237.5, 1538.5(m) ; Conn. Gen. Stat. § 54-94a ; Mont. Code Ann. § 46-12-204(3) ; Nev. Rev. Stat. § 174.035(3) ; N.Y. Crim. Proc. Law § 710.70 ; N.C. Gen. Stat. § 15A-979(b) ; Or. Rev. Stat. § 135.335(3) ; Tex. Code Crim. Proc. Ann. art. 44.02 ; Va. Code § 19.2-254 ; Wis. Stat. § 971.31(10) ; Ala. R. Crim. P. 26.9(b)(4) ; Ark. R. Crim. P. 24.3(b) ; D.C. Super. Ct. R. Crim. P. 11(a)(2) ; Fla. R. A. P. 9.140(b)(2)(A); Haw. R. Penal P. 11(a)(2) ; Idaho R. Crim. P. 11(a)(2) ; Ky. R. Crim. P. 8.09 ; Me. R. Crim. P. 11(a)(2) ; Mich. R. Crim. P. 6.301(C)(2); N.J. R. Crim. P. 3:9-3(f); N.M. Dist. Ct. R. Crim. P. 5 -304.A(2); N.D. R. Crim. P. 11(a)(2) ; Ohio R. Crim. P. 12(I) ; Tenn. R. Crim. P. 37(b)(2)(A) ; Tex. R. A. P. 25.2(a)(2)(A) ; Utah R. Crim. P. 11(j) ; Vt. R. Crim. P. 11(a)(2) ; W. Va. R. Crim. P. 11(a)(2) ; Wyo. R. Crim. P. 11(a)(2) ; Cooksey v. State, 524 P.2d 1251, 1255-1256 (Alaska 1974), disapproved on other grounds by Miller v. State, 617 P.2d 516, 519 n.6 (Alaska 1980) ; State v. Crosby, 338 So.2d 584, 586-592 (La. 1976). The Supreme Court of Pennsylvania has not definitively ruled on this issue, but lower courts in Pennsylvania routinely permit conditional guilty pleas. See Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa. Super. 2017) (collecting cases).
      Of the remaining States, fifteen do not allow conditional guilty pleas. See State v. Zunino, 133 Ariz. 117, 118, 649 P.2d 996 (Ct. App. 1982) ; Neuhaus v. People, 2012 CO 65, ¶¶ 11-20, 289 P.3d 19 ; Hooten v. State, 212 Ga.App. 770, 775, 442 S.E.2d 836 (1994) ; People v. Gonzalez, 313 Ill.App.3d 607, 618-619, 246 Ill.Dec. 509, 730 N.E.2d 534 (2000) ; Alvey v. State, 911 N.E.2d 1248, 1250 (Ind. 2009) ; State v. Freilinger, 557 N.W.2d 92, 93 (Iowa 1996) ; State v. Kelly, 295 Kan. 587, 592, 285 P.3d 1026 (2012) ; Bishop v. State, 417 Md. 1, 20, 7 A.3d 1074 (2010) ; State v. Ford, 397 N.W.2d 875, 878 (Minn. 1986) ; State v. Liston, 271 Neb. 468, 471, 712 N.W.2d 264 (2006) ; State v. Parkhurst, 121 N.H. 821, 822, 435 A.2d 522 (1981) ; State v. Keohane, 814 A.2d 327, 329 (R.I. 2003) ; State v. Downs, 361 S.C. 141, 145, 604 S.E.2d 377 (2004) ; State v. Rondell, 2010 S.D. 87, ¶¶ 4-10, 791 N.W.2d 641 ; State v. Smith, 134 Wash.2d 849, 853, 953 P.2d 810 (1998). The Illinois Appellate Court has, however, "urge[d] the legislature or [the] supreme court to consider instituting conditional pleas." Gonzalez, supra at 619, 246 Ill.Dec. 509, 730 N.E.2d 534. Delaware, Mississippi, Missouri, and Oklahoma do not appear to have addressed this issue.

      See Cal. Penal Code § 1538.5(m) ("A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty"); N.Y. Crim. Proc. Law § 710.70 ("An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty"); N.C. Gen. Stat. § 15A-979(b) ("An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty"); Wis. Stat. § 971.31(10) ("An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon a plea of guilty or no contest to the information or criminal complaint"); Ohio R. Crim. P. 12(I) ("The plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence").

      See D.C. Super. Ct. R. Crim. P. 11(a)(2) ; Haw. R. Penal P. 11(a)(2) ; Idaho R. Crim. P. 11(a)(2) ; Mich. R. Crim. P. 6.301(C)(2); N.J. R. Crim. P. 3:9-3(f); N.M. Dist. Ct. R. Crim. P. 5-304A(2); N.D. R. Crim. P. 11(a)(2) ; Utah R. Crim. P. 11(j) ; Vt. R. Crim. P. 11(a)(2) ; W. Va. R. Crim. P. 11(a)(2) ; Wyo. R. Crim. P. 11(a)(2) ; Mont. Code Ann. § 46-12-204(3) ; Nev. Rev. Stat. § 174.035(3) ; Or. Rev. Stat. § 135.335(3) ; Va. Code § 19.2-254. Variances among these provisions are negligible for our purposes. For example, Idaho, New Jersey, North Dakota, and Virginia only permit conditional guilty pleas, not conditional "no contest" pleas. See Va. Code § 19.2-254 ; Idaho R. Crim. P. 11(a)(2) ; N.J. R. Crim. P. 3:9-3(f); N.D. R. Crim. P. 11(a)(2). Michigan, Nevada, and Utah permit conditional "guilty but mentally ill" pleas in additional to conditional guilty and conditional no contest pleas, and Michigan also permits conditional "not guilty by reason of insanity" pleas. See Nev. Rev. Stat. § 174.035(3) ; Mich. R. Crim. P. 6.301(C)(2); Utah R. Crim. P. 11(j). Montana does not specify that the plea must be in writing or otherwise on the record. Mont. Code Ann. § 46-12-204(3).

      See Cal. Penal Code §§ 1237.5, 1538.5(m) (requires court's "certificate of probable cause" for appeal of particular motion); Conn. Gen. Stat. § 54-94a (limited to motions to suppress and motions to dismiss, and requires trial court first to ensure that motion from which defendant seeks to appeal is dispositive); N.C. Gen. Stat. § 15A-979(b) (does not require consent of court or prosecutor); N.Y. Crim. Proc. Law § 710.70(2) (does not require consent of court or prosecutor); Tex. Code Crim. Proc. Ann. art. 44.02 (only requires consent of court); Wis. Stat. § 971.31(10) (does not require consent of court or prosecutor, but limited to "motion to suppress evidence or a motion challenging the admissibility of a statement"); Ala. R. Crim. P. 26.9(b)(4) (does not require consent of court or prosecutor, but requires defendant to specify motion for appeal); Ark. R. Crim. P. 24.3(b) (requires consent of court and prosecutor, limited to appeal of motions to suppress, speedy trial issues, and constitutional challenges of statutes defining offenses charged); Fla. R. A. P. 9.140(b)(2)(A) (does not require consent of court or prosecutor, but requires defendant to specify motion and issue for appeal); Ky. R. Crim. P. 8.09 (requires court approval and requires defendant to specify motion for appeal); Ohio R. Crim. P. 12(I) (does not require consent of court or prosecutor); Tenn. R. Crim. P. 37(b)(2)(A) (requires consent of court and prosecutor and that defendant reserve "right to appeal a certified question of law that is dispositive of the case"); Tex. R. A. P. 25.2(A) (only requires consent of court).

      See Ginn v. State, 894 So.2d 793, 801-804 (Ala. Crim. App. 2004) ; Cooksey, 524 P.2d at 1255-1256 ; State v. Ashby, 245 So.2d 225, 228-229 (Fla. 1971) ; Crosby, 338 So.2d at 586-592 ; People v. Reid, 420 Mich. 326, 337, 362 N.W.2d 655 (1984) ; State v. Hodge, 1994-NMSC-087, ¶ 18, 118 N.M. 410, 882 P.2d 1;State v. Sery, 758 P.2d 935, 938-940 (Utah Ct. App. 1988) ; Ala. R. Crim. P. 26.9(b)(4) ; Fla. R. A. P. 9.140(b)(2)(A); Mich. R. Crim. P. 6.301(C)(2); N.M. Dist. Ct. R. Crim. P. 5 -304.A(2); Utah R. Crim. P. 11(j).
      Georgia initially authorized conditional pleas by judicial decision but subsequently reversed the decision. See Hooten v. State, 212 Ga.App. 770, 775, 442 S.E.2d 836 (1994) ; Mims v. State, 201 Ga.App. 277, 278-279, 410 S.E.2d 824 (1991).

      The Commonwealth argues that a conditional guilty plea "may reduce the effectiveness of appellate review due to the lack of a full trial record, and vitiates the harmless error doctrine by forcing consideration of alleged errors which have not practically wronged the defendant." As explained above, however, the motion judge has discretion to limit the defendant's appeal to dispositive issues, and may consider the completeness of the record when making this determination.


source: Caselaw Access Project

author: CYPHER, J.

license: Public Domain

text:
    COMMONWEALTH v. Brandon BAEZ.
    SJC-12394
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued April 5, 2018 Decided August 23, 2018
    Robert F. Hennessy, Springfield, for the defendant.
    John P. Zanini, Assistant District Attorney (Stacey Pichardo Corson, Assistant District Attorney, also present) for the Commonwealth.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   CYPHER, J.

This case presents the question whether, in light of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), juvenile delinquency adjudications for violent offenses may serve as predicate offenses for adults indicted under G. L. c. 269, § 10G, the armed career criminal act (ACCA). We conclude that they may.

Background. At age eighteen, the defendant, Brandon Baez, was indicted for a violation of G. L. c. 269, § 10 (a ), unlawful possession of a firearm. If convicted, and if he had no qualifying convictions for sentence enhancement, he would "be punished by imprisonment in the state prison for not less than two and one-half years nor more than five years, or for not less than [eighteen]

months nor more than two and one-half years in a jail or house of correction." G. L. c. 269, § 10 (a ) (6).

The defendant had twice been adjudicated delinquent for crimes of violence as defined by the Legislature; therefore, the Commonwealth charged the defendant with violating § 10G. The ACCA mandates enhanced sentencing for adults who violate G. L. c. 269, § 10 (a ), (c ), or (h ), and have "been previously convicted of a violent crime or of a serious drug offense."

G. L. c. 269, § 10G (a ) - (c ). In other circumstances, we have determined that when the Legislature used the word "conviction" rather than adjudication, it meant to exclude juvenile delinquency adjudications. See generally Commonwealth v. Connor C., 432 Mass. 635, 646, 738 N.E.2d 731 (2000) ("We adhere to our long-standing jurisprudence that an 'adjudication' that a child has violated a law generally is not a 'conviction' of a crime"). Here, the Legislature imported the definition of "violent crime" from G. L. c. 140, § 121, which includes "any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult." See Commonwealth v. Anderson, 461 Mass. 616, 631, 963 N.E.2d 704, cert. denied, 568 U.S. 946, 133 S.Ct. 433, 184 L.Ed.2d 265 (2012) ; Commonwealth v. Furr, 58 Mass. App. Ct. 155, 157-158, 788 N.E.2d 592 (2003).

The ACCA creates a tiered system of punishment. Those with one applicable conviction "shall be punished by imprisonment in the state prison for not less than three years nor more than [fifteen] years." Those with two applicable convictions, such as the defendant, "shall be punished by imprisonment in the state prison for not less than ten years nor more than [fifteen] years." Those with three applicable convictions "shall be punished by imprisonment in the state prison for not less than [fifteen] years nor more than [twenty] years." G. L. c. 269, § 10G (a ) - (c ).

While the defendant's current case was proceeding, a judge in the Superior Court raised sua sponte the issue whether using juvenile adjudications to enhance sentencing in the same manner as adult convictions violated due process rights and protections under the Eighth Amendment to the United States Constitution. The judge invited the defendant to file a motion to dismiss on these grounds and reported the following question to the Appeals Court: "Whether in light of Miller v. Alabama, [567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ], a juvenile adjudication may be used as a predicate offense for enhanced penalties under G. L. c. 269, § 10G." We subsequently allowed the defendant's application for direct appellate review.

Discussion. The Eighth Amendment's prohibition against cruel and unusual punishments and art. 26's comparable ban include protections from excessive and disproportionate sanctions. See Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ; Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 671, 1 N.E.3d 270 (2013), S.C., 471 Mass. 12, 27 N.E.3d 349 (2015). A punishment is unconstitutional if it is so disproportionate that it "shocks the conscience" (citation omitted). Diatchenko, supra at 669, 1 N.E.3d 270. Proportionality concerns are especially acute when evaluating punishments for juveniles because "children are constitutionally different from adults for purposes of sentencing." Miller, 567 U.S. at 471, 132 S.Ct. 2455.

In Miller, 567 U.S. at 479, 132 S.Ct. 2455, the United States Supreme Court held that the Eighth Amendment prohibits mandatory sentences of life without the possibility of parole for juvenile offenders convicted of murder. We applied Miller's holding in Diatchenko, 466 Mass. at 671, 1 N.E.3d 270, and "conclude[d] that the discretionary imposition of a sentence of life in prison without the possibility of parole on juveniles who are under the age of eighteen when they commit murder in the first degree violates the prohibition against 'cruel or unusual punishment[ ]' in art. 26." Miller, Diatchenko, and their progeny are controlling when evaluating the constitutionality of juvenile sentencing, but merely inform our understanding of the proportionality of adult punishment.

"The essence of proportionality is that 'punishment for crime should be graduated and proportioned to both the offender and the offense.' " Commonwealth v. Perez, 477 Mass. 677, 683, 80 N.E.3d 967 (2017). We reached our conclusion in Diatchenko, in part, by considering the "unique characteristics of juvenile offenders." Diatchenko, 466 Mass. at 671, 1 N.E.3d 270. Here, however, those characteristics are not relevant because the defendant is an adult. If convicted, he would not be punished for his juvenile activity. He would be punished for violating the law as an adult while having two applicable juvenile adjudications on his record.

Without consideration of a juvenile offender's "diminished culpability," Miller, 567 U.S. at 471, 132 S.Ct. 2455, the analysis of the proportionality of the punishment to the offense is straightforward. The Commonwealth argues that § 10G's sentencing scheme considers "the fact that [the defendant] has not been rehabilitated." The Commonwealth further notes, "[m]ore severe sentences are justified by recidivism." Indeed, we have said as much when interpreting the ACCA. See Commonwealth v. Resende, 474 Mass. 455, 468-469, 52 N.E.3d 1016 (2016) (best interpretation of ACCA is one that "reflects and implements the principle that penal discipline can have [or should have] a reforming influence on an offender, with enhanced consequences if prior convictions and sentences do not have such an effect"). "Recidivism has long been recognized as a legitimate basis for increased punishment." Ewing v. California, 538 U.S. 11, 25, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003). Specifically, the Commonwealth contends that the purpose of the ACCA's enhanced sentencing scheme is to achieve the penological goals of deterrence and incapacitation. Each is a justifiable objective of incarceration under the Eighth Amendment and art. 26. "[A] second or subsequent offense is often regarded as more serious because it portends greater future danger and therefore warrants an increased sentence for purposes of deterrence and incapacitation." United States v. Rodriquez, 553 U.S. 377, 385, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008). The potential punishment is therefore constitutionally proportionate to the offender and the offense.

We therefore answer "yes" to the reported question, holding that qualifying juvenile adjudications may be used as a predicate offense for enhanced penalties under G. L. c. 269, § 10G.

So ordered.

GANTS, C.J. (concurring, with whom Lenk and Budd, JJ., join).

I agree with the court that it is not unconstitutional to use the adult defendant's two juvenile adjudications for separate "violent crime[s]," as defined in G. L. c. 140, § 121, as predicate offenses for enhanced sentences under G. L. c. 269, § 10G (b ). I write separately to encourage the Legislature to consider the wisdom and fairness of the mandatory minimum aspect of those enhanced sentences, especially where the predicate offenses were committed when the defendant was a juvenile.

First, although the court here, as in other cases, refers to § 10G as "the armed career criminal act" or as applying to "armed career criminals," the statute does not contain these words, and the Legislature never gave the statute that name. See St. 1998, c. 180, § 71. And that is for good reason, because many, perhaps most, defendants given enhanced sentences under the provisions of § 10G cannot reasonably be characterized as armed career criminals.

"The term, 'armed career criminal,' derives from the Federal Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (2006), which imposes a mandatory minimum sentence of fifteen years for those convicted of unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g) (2006) who have three prior convictions of a 'violent felony' or a 'serious drug offense.' " Commonwealth v. Anderson, 461 Mass. 616, 626 n.10, 963 N.E.2d 704, cert. denied, 568 U.S. 946, 133 S.Ct. 433, 184 L.Ed.2d 265 (2012). But under § 10G, a single prior conviction of a "violent crime" or of a "serious drug offense" requires the imposition of a mandatory minimum sentence of no less than three years for anyone convicted of a crime under G. L. c. 269, § 10 (a ), (c ), or (h ) -- provisions which include the offenses of carrying a firearm without a license and the illegal transfer of a firearm or ammunition. See G. L. c. 269, § 10G (a ). Two such prior convictions, as in this case, require the imposition of a mandatory minimum sentence of no less than ten years. See G. L. c. 269, § 10G (b ). And, as illustrated by this case, the prior "violent crime" or "violent crime[s]" may have been committed when the defendant was a juvenile -- here, the defendant was only fifteen years old when he committed his two predicate offenses.

The Legislature this year passed landmark criminal justice reform legislation that has begun the process of revisiting the wisdom and fairness of mandatory minimum sentences for certain offenses. See St. 2018, c. 69 (eliminating mandatory minimum sentences for many low-level, nonviolent drug offenses). As that process continues, and as the Legislature examines the wisdom and fairness of other mandatory minimum sentences (including the length of those mandatory minimum sentences), it is important to recognize that many, perhaps most, of the defendants given mandatory minimum sentences as required by § 10G are not reasonably characterized as armed career criminals, especially where their predicate crimes were committed when they were juveniles.

      General Laws c. 269, § 10G, is sometimes referred to in our decisions and by the bar as the armed career criminal act (ACCA). We therefore refer to § 10G in this opinion as the ACCA.

      The defendant was also indicted for carrying a loaded firearm. G. L. c. 269, § 10 (n ). That count is not before us.

      Both adjudications resulted from the defendant's actions at age fifteen. He was adjudicated delinquent by reason of armed assault to rob and assault and battery by means of a dangerous weapon and was again adjudicated delinquent by reason of assault by means of a dangerous weapon. The dangerous weapon in each adjudication was a knife.

      The Commonwealth is not alleging that the ACCA applies to the defendant because he was "previously convicted ... of a serious drug offense." We therefore do not decide whether the statute applies to juvenile adjudications for drug offenses.

      Although the judge mentioned due process concerns in his discussion with counsel, he did not raise that issue in the certified question, so we therefore do not address it.

      Article 26 prohibits the infliction of "cruel or unusual punishments."

      "Relying on science, social science, and common sense, the Supreme Court in Miller pointed to three significant characteristics differentiating juveniles from adult offenders for purposes of Eighth Amendment analysis. First, children demonstrate a ' "lack of maturity and an underdeveloped sense of responsibility," leading to recklessness, impulsivity, and heedless risk-taking.' Second, children ' "are more vulnerable ... to negative influences and outside pressures," including from their family and peers; they have limited "contro[l] over their own environment"[;] and [they] lack the ability to extricate themselves from horrific, crime-producing settings.' Finally, 'a child's character is not as "well formed" as an adult's; his traits are "less fixed" and his actions less likely to be evidence of irretrievabl[e] deprav[ity].' " (Citations omitted.) Diatchenko, 466 Mass. at 660, 1 N.E.3d 270, quoting Miller, 567 U.S. at 471, 132 S.Ct. 2455.

      Even though these characteristics are not relevant to the constitutional analysis, if the defendant were to be convicted, the circumstances surrounding his underlying juvenile adjudications would be relevant to the judge's determination of what sentence to impose, as in any sentencing decision.

      Although not binding on our interpretation of art. 26's protections or the constitutionality of G. L. c. 269, § 10G, Federal courts have addressed a similar question and held that the use of juvenile adjudications to enhance sentences under the Federal armed career criminal act, 18 U.S.C. § 924(e), does not violate the Eighth Amendment. See United States v. Orona, 724 F.3d 1297, 1309-1310 (10th Cir.), cert. denied, 571 U.S. 1034, 134 S.Ct. 662, 187 L.Ed.2d 438 (2013) ; United States v. Mason, 435 Fed. Appx. 726, 730-731 (10th Cir. 2011) ; United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003), cert. denied, 540 U.S. 1150, 124 S.Ct. 1145, 157 L.Ed.2d 1044 (2004).

      When evaluating Eighth Amendment and art. 26 claims, we also compare the challenged punishment with penalties imposed for more serious crimes within the Commonwealth, and assess whether the challenged punishment is comparable to penalties imposed for the same offense in other jurisdictions. Commonwealth v. Perez, 477 Mass. 677, 684, 80 N.E.3d 967 (2017). However, the reported question asks about the application of Miller, which is relevant only to the nature of the offender. To opine further would be to analyze unnecessarily the ACCA's constitutionality. See Commonwealth v. Vega, 449 Mass. 227, 234, 866 N.E.2d 892 (2007).

      See, e.g., Commonwealth v. Johnson, 461 Mass. 44, 45, 958 N.E.2d 25 (2011) ; Commonwealth v. Furr, 454 Mass. 101, 104, 907 N.E.2d 664 (2009).


text:
    COMMONWEALTH v. Antonio FERNANDEZ.
    SJC-09264
    Supreme Judicial Court of Massachusetts, Norfolk..
    Argued January 9, 2018 Decided August 24, 2018
    John H. Cunha, Jr., Boston, for the defendant.
    Pamela L. Alford, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ.
   LOWY, J.

Almost as quickly as a verbal spat between two groups of teenagers erupted, it dissipated. The defendant, Antonio Fernandez, and his friends turned their backs and began riding their bicycles away. Unprovoked, the defendant got off his bicycle, turned to one of his friends, and said, "Fuck that shit." He then took out a handgun, cocked it, and walked back toward the victim. The defendant aimed the handgun at the victim and shot him in the chest. The victim collapsed nearby and died a short time later.

At trial, it was uncontroverted that the defendant killed the victim; the defendant presented a theory of self-defense. A Superior Court jury convicted the defendant of murder in the first degree on the theory of deliberate premeditation and possession of a firearm without a license. The defendant does not challenge that he shot and killed the victim. He does, however, argue that (1) the judge abused his discretion by denying the defendant's motions for funds for an expert and for a continuance on the eve of trial, (2) the circumstances of the killing and the fact that he was sixteen at the time of the killing require a reduction of the verdict, and (3) the defendant's right to a public trial under the Sixth Amendment to the United States Constitution was violated because the court room was closed during jury empanelment. We discern no reversible error and, after thorough review of the record, decline to order a new trial or to direct the entry of a verdict of a lesser degree of guilt under G. L. c. 278, § 33E. However, we remand the matter to the Superior Court for resentencing consistent with Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 666, 1 N.E.3d 270 (2013), S.C., 471 Mass. 12, 27 N.E.3d 349 (2015).

1. Background. We recite the facts as the jury could have found them, reserving certain details for later discussion as they relate to other issues raised on appeal.

On the evening of June 20, 2002, the victim attended a cookout in Brookline to celebrate his graduation from high school. Following the cookout, the victim and several friends, all of whom were between the ages of fifteen and nineteen years old, traveled to a nearby park to "hang out." Shortly after arriving, the victim and his friends saw three male teenagers, one of whom was the defendant, approach the park on bicycles. The defendant and his two friends had traveled from Boston to Brookline, supposedly "to see some girls." The defendant and his friends were all between the ages of fourteen and sixteen; the defendant was sixteen years old at the time. The defendant and his friends entered the park, approached the victim and his friends, and asked if they had any marijuana. One of the victim's friends said that they did not, and the three Boston teenagers left the park. Neither the victim nor any of his friends knew or recognized the defendant or either of his companions.

The defendant and his friends made their way to a nearby street, where one of the teenagers sat on the hood of a parked motor vehicle while the defendant and the third individual sat on their bicycles. A short time later, the victim and his friends also left the park and approached the defendant's crew; a verbal confrontation ensued. Although the accounts of the encounter differed slightly, it appears that the defendant's group had been laughing at the victim and his friends, and one of the victim's friends asked the defendant and his friends if they had a problem. When this interaction began, the victim was not involved and instead was riding his bicycle nearby. The demeanor of the interaction intensified, with one member of the defendant's group proclaiming, "Brookline is a bunch of bitches." One of the victim's friends told the defendant and his friends to leave. When they did not leave, one of the victim's friends asked the defendant and his friends if they wanted to "shoot the fair ones," meaning have a fist fight. The defendant and his friends group declined, responding, "We don't fight fair." At this point, the victim got off his bicycle and stood by his friend who had been interacting with the defendant's group. The victim raised his hands as if ready to fight and told the defendant and his friends to "[g]et the fuck out of here." No punches were thrown, and the spat between the groups did not escalate beyond name-calling and posturing.

One of the defendant's friends suggested that they leave, warning the defendant that the victim might have a weapon. The defendant responded, "He doesn't know what I got." One of the defendant's friends responded to him, "Don't do anything stupid."

At that point, the defendant and his crew turned away from the victim and his friends and began leaving; it appeared that the confrontation had ended.

The defendant rode his bicycle away from the victim and his friends. It took the defendant about fifteen seconds to ride in the vicinity of forty-five feet away from the victim and his friends. At that point, having moved away from the scene of the confrontation, the defendant, unprovoked, stopped and put his bicycle down. He turned to one of his friends and said, "Fuck that shit." The defendant then pulled out a handgun, cocked it, and began making his way back toward the victim. The victim had not moved, and his hands were in the air; he was not holding anything. The defendant stated, "I don't shoot the fair ones," pointed the handgun at the victim's chest, and fired. The bullet struck the victim in the center of his chest, passing through his left lung and heart before leaving his body. The victim collapsed nearby, bleeding profusely from his chest. The defendant ran away laughing. He and his friends fled the scene.

Police responded almost immediately and began performing first aid on the victim, but he died shortly after being shot. No gun, and no other weapon, was found on or near the victim's person.

Later that night, the defendant bragged about the shooting, proclaiming that he was "the number one clapper," meaning that he was the number one shooter. The following day, the defendant telephoned one of his friends who was with him during the shooting and asked if the friend would travel with him to the Dominican Republic. His friend declined, and the defendant fled to New York, where he was apprehended three days later.

At trial, the defendant did not contest that he killed the victim; instead, he claimed that he was acting in self-defense. Defense counsel argued that the defendant believed the victim or one of the victim's friends was armed, and the defendant believed he was facing serious and imminent bodily harm. The jury found the defendant guilty of murder in the first degree on the theory of deliberate premeditation and possession of a firearm without a license.

2. Discussion. a. Motion for funds for an expert and a continuance. After several continuances, the defendant's trial was scheduled to begin on November 13, 2003. On November 10, three days before trial, the defendant filed a motion for funds to hire an expert on adolescent brain development to evaluate the defendant and testify in his defense. When defense counsel filed this motion, she had been representing the defendant for approximately one and one-half years. Although defense counsel sought funds to hire an expert on the eve of trial, she did not claim that she was unprepared for trial. The trial judge construed the defendant's "motion for funds" as a motion for a continuance because granting the motion to hire an expert would necessitate a continuance of the trial by several months.

The defendant's motion generally asserted that an expert could evaluate the development of his brain by conducting a brain scan. In the event the scan indicated that the defendant's brain was underdeveloped for purposes of decision-making and impulse control, the defendant could then argue, with the support of expert testimony, that he did not have the capacity to form the specific intent necessary to commit murder in the first degree on the theory of deliberate premeditation. In support of the motion, the defendant attached an article published by the National Juvenile Defender Center describing how the science of adolescent brain development had progressed considerably over the previous five years, and that the adolescent brain was generally less developed than previously believed. The article further posited that adolescents with less developed brains tended to react with "gut instinct" rather than organized, reasoned thought. The defendant also included an article describing the technology used to scan the brain as having "a brilliant future in medicine, psychology, psychiatry, and in the neurosciences in general, for studying the relation between [brain] structure and function." There was nothing in the materials submitted in support of the defendant's motion indicating that all adolescent brains develop at the same rate, or that there was necessarily a direct correlation between an individual's age and his or her brain development. According to the defendant, brain development directly correlated to an adolescent's ability to control impulses, perform organized thought, and form specific intent. A hearing on the defendant's motion took place the day before trial was set to begin. Defense counsel explained that she began Internet research the week prior, looking for possible ways to "break this case down from a murder to a manslaughter." In the course of this research, defense counsel discovered the materials describing the advances in the science of adolescent brain development that gave rise to the request for funds to hire an expert and a continuance. The article the defendant principally relied on had been published in April, 2003, approximately six months earlier. Defense counsel argued that conducting scans of the defendant's brain could demonstrate the extent to which the defendant's brain was developed, which, in turn, could potentially indicate whether the defendant was more likely to think impulsively and whether he was capable of forming the specific intent to commit murder in the first degree.

The judge, who was aware of the advances in the science of adolescent brain development, acknowledged that the material submitted indicated that adolescents are "subject to these potential risks and dangers," but noted that "no study says that all juveniles develop in the same way," and that the studies had margins of error. Critically, the judge noted that the defendant failed to provide any information suggesting that the defendant fell within the group of adolescents identified in the literature. In other words, the defendant failed to submit sufficient evidence, such as psychological or behavioral studies, suggesting brain scans would provide useful information for the defendant's case. The judge also noted that although defense counsel had been representing the defendant for approximately one and one-half years, she raised this issue for the first time on the eve of trial. The judge's decision to deny the defendant's motion centered on the fact that the defendant had belatedly requested the continuance and failed to substantiate that the defendant fell within the group of adolescents generally described by the studies.

Because the judge's denial had nothing to do with the request for funds itself, but instead focused on the defendant's implicit request for a continuance, we consider whether the judge erred in denying the defendant's motion for a continuance. , "Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion, which is to be determined in the circumstances of each case." Commonwealth v. Pena, 462 Mass. 183, 189, 967 N.E.2d 603 (2012), quoting Commonwealth v. Bettencourt, 361 Mass. 515, 517-518, 281 N.E.2d 220 (1972). See Commonwealth v. Snell, 428 Mass. 766, 771-772, 705 N.E.2d 236 (1999), cert. denied, 528 U.S. 1106, 120 S.Ct. 850, 145 L.Ed.2d 715 (2000) (motion to continue filed ten days before trial seeking further deoxyribonucleic acid testing properly denied). A judge considering a motion for a continuance may not exercise his or her discretion "in such a way that denial of a continuance deprives a defendant of the right to effective assistance of counsel and to due process of law." Pena, supra at 190, 967 N.E.2d 603. See Commonwealth v. Miles, 420 Mass. 67, 85, 648 N.E.2d 719 (1995) (counsel must have reasonable opportunity to prepare defense). Although there is no "mechanical test" for determining whether the denial of a continuance constituted an abuse of discretion, Commonwealth v. Cavanaugh, 371 Mass. 46, 51, 353 N.E.2d 732 (1976), "we are guided by the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied" (citation and quotation omitted). Commonwealth v. Cruz, 456 Mass. 741, 747, 926 N.E.2d 142 (2010). See Commonwealth v. Caldwell, 459 Mass. 271, 285, 945 N.E.2d 313 (2011), quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). "A judge should grant a continuance only when justice so requires, balancing the requesting party's need for additional time against concerns about inconvenience, cost, potential prejudice, and the burden of the delay on both the parties ...."

Commonwealth v. Melo, 472 Mass. 278, 305, 34 N.E.3d 289 (2015), quoting Commonwealth v. Ray, 467 Mass. 115, 128, 4 N.E.3d 221 (2014). See Mass. R. Crim. P. 10 (a) (1), 378 Mass. 861 (1979) ("a continuance shall be granted only when based upon cause and only when necessary to insure that the interests of justice are served"). The judge must also consider the over-all administration of justice, and "give due weight to the interest of the judicial system in avoiding delays which would not measurably contribute to the resolution of a particular controversy." Commonwealth v. Chavis, 415 Mass. 703, 711, 616 N.E.2d 423 (1993), quoting Cavanaugh, supra.

Based on the particular circumstances presented in the defendant's request for a continuance, we conclude that the judge did not abuse his discretion in denying the motion. After representing the defendant for approximately one and one-half years, and having successfully moved for funds to hire a private investigator and a ballistics expert on April 30, 2003, defense counsel moved for what would amount to the functional equivalent of a continuance at least several months long, three days before trial. Beyond the belated nature of this request, the defendant did not support the motion with information or evidence -- other than the defendant's age at the time of the offenses -- indicating that the requested brain scans would yield helpful information. Defense counsel did not present evidence concerning the defendant's medical, psychological, or behavioral history; school records; or any information suggesting that he was a particularly psychologically troubled adolescent who might fall within the group of adolescents described in the literature. The defendant's motion relied exclusively on articles, which do not appear to be peer-reviewed medical or psychological studies or journals, that discuss generally the advancement of the science of adolescent brain development in the previous five years, and that argue that juvenile brains, in general, are less developed than adult brains. In short, the defendant failed to support his motion with any evidence specific to him suggesting that a continuance to hire an adolescent brain development expert would furnish exculpatory evidence in his case. See Snell, 428 Mass. at 772, 705 N.E.2d 236.

In support of his argument, the defendant focuses on our scientific and legal understanding of adolescent brain development as it exists in 2018, not the understanding of the science or law as it existed at the time of his trial in 2003. There is no question that our scientific and legal understanding of adolescent brain development has advanced since the defendant's trial. See Miller v. Alabama, 567 U.S. 460, 479-480, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (invalidating sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders convicted of homicide offenses); Graham v. Florida, 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (prohibiting life sentence without possibility of parole for juveniles convicted of nonhomicide offenses); Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (invalidating death penalty for juveniles). See also Commonwealth v. Okoro, 471 Mass. 51, 59-60, 26 N.E.3d 1092 (2015) ; Diatchenko, 466 Mass. at 658, 1 N.E.3d 270. It is now well established, based on "science, social science, and common sense," that adolescents are significantly different from adults for purposes of analysis under the Eighth Amendment to the United States Constitution. Diatchenko, supra at 660, 1 N.E.3d 270, citing Miller, supra at 471, 132 S.Ct. 2455. See Okoro, supra ("[s]cientific and social science research on adolescent brain development and related issues continues"). Therefore, our acknowledgement that adolescents are constitutionally different from adults has been precisely limited to our consideration of juvenile sentencing, not whether a juvenile defendant is capable of committing murder. See Okoro, supra ; Diatchenko, supra at 659-660, 1 N.E.3d 270. See also Commonwealth v. Perez, 477 Mass. 677, 682-683, 80 N.E.3d 967 (2017) ; Commonwealth v. Brown, 474 Mass. 576, 590 n.7, 52 N.E.3d 137 (2016) (holding of Miller focuses on "prohibition against cruel and unusual punishment under the Eighth Amendment ... as it applied to sentencing and punishment of juveniles," and did not address "intent, knowledge, or deliberate premeditation as elements of a crime"); Commonwealth v. Ogden O., 448 Mass. 798, 804, 864 N.E.2d 13 (2007) ("While a delinquent child may not have the maturity to appreciate fully the consequences of his wrongful actions ..., that does not mean that a delinquent child lacks the ability to formulate the specific intent to commit particular wrongful acts"). But see Okoro, supra at 65-66, 26 N.E.3d 1092 (trial judge was correct in both allowing expert testimony concerning that particular juvenile defendant's "capacity for impulse control and reasoned decision-making on the night of the victim's death," and precluding expert from suggesting that "it was impossible for anyone [fifteen years old] to formulate the necessary intent to commit [murder in the second degree]").

Despite these changes in the science and law as they relate to juvenile sentencing, we do not impute our contemporary legal or scientific understanding of adolescent brain development in evaluating whether the trial judge abused his discretion by denying the defendant's motion for a continuance on the eve of trial in 2003. Instead, "we are guided by the circumstances present in [this] case" (citation and quotation omitted), Cruz, 456 Mass. at 747, 926 N.E.2d 142, reflecting the law and general understanding of adolescent brain development in 2003, Commonwealth v. Lally, 473 Mass. 693, 704-705, 46 N.E.3d 41 (2016) (concluding that although scientific guidelines had changed, method used at trial was "reliable method ... at the time of trial"). See Commonwealth v. Bastaldo, 472 Mass. 16, 31, 32 N.E.3d 873 (2015) ("we evaluate the alleged errors under the existing law at the time of trial"); Commonwealth v. Crayton, 470 Mass. 228, 245, 21 N.E.3d 157 (2014) (judge did not abuse discretion where decision "was in accord with the case law existing at the time of her decision"). See also Commonwealth v. LeFave, 430 Mass. 169, 181, 714 N.E.2d 805 (1999) (discussing "conflict between the constantly evolving nature of science and the doctrine of finality").

From the circumstances presented here, notably the defendant's failure to substantiate his request with specific evidence -- other than his age -- the defendant failed to make a "case-specific argument for granting a continuance at that juncture." Ray, 467 Mass. at 129, 4 N.E.3d 221. See Cruz, 456 Mass. at 748, 926 N.E.2d 142 (no abuse of discretion in denying motion for continuance where "defendant failed to provide a persuasive reason for a continuance and instead relied on general assertions that the defense could 'benefit' from more time"). Viewing the evidence presented by the defendant in his motion for funds and for a continuance in light of the science in 2003, and its acceptance in our legal system, it is unlikely that a delay could have measurably contributed to the fair resolution of the case. Ray, supra, citing Miles, 420 Mass. at 85, 648 N.E.2d 719. The judge's decision was not a "myopic insistence upon expeditiousness in the face of a justifiable request for delay." Pena, 462 Mass. at 190, 967 N.E.2d 603. Instead, it reflected careful examination of the circumstances presented, particularly the lack of support offered to substantiate the request for a continuance. See Cruz, supra. Accordingly, we affirm the trial judge's denial of the defendant's motion for a continuance.

b. Sufficiency of the evidence of premeditation. The defendant contends that the evidence in his case indicates spontaneity rather than deliberate premeditation, and therefore, that we should exercise our extraordinary authority under G. L. c. 278, § 33E, to reduce his verdict from murder in the first degree to murder in the second degree or manslaughter. Pursuant to G. L. c. 278, § 33E, our duty is "to consider broadly the whole case on the law and the facts to determine whether the verdict is consonant with justice" (citation and quotation omitted). Commonwealth v. Howard, 469 Mass. 721, 747, 16 N.E.3d 1054 (2014). In undertaking this duty, we may, "if satisfied that the verdict was against the law or the weight of the evidence ... or for any other reason that justice may require[,] ... direct the entry of a verdict of a lesser degree of guilt." G. L. c. 278, § 33E.

We begin by noting that "a primary consideration" in determining whether a conviction of murder in the first degree based on deliberate premeditation is consonant with justice "is whether the killing reflects spontaneity rather than premeditation" (citation and quotation omitted). Commonwealth v. Ruci, 409 Mass. 94, 98, 564 N.E.2d 1000 (1991). In order to prove deliberate premeditation, the Commonwealth must show that "the plan to kill was formed after deliberation and reflection. However, no particular length of time is required in order for deliberate premeditation to be found." Commonwealth v. Bolling, 462 Mass. 440, 446, 969 N.E.2d 640 (2012), quoting Commonwealth v. Caine, 366 Mass. 366, 374, 318 N.E.2d 901 (1974). "The law recognizes that a plan to murder may be formed within a few seconds." Commonwealth v. Chipman, 418 Mass. 262, 269, 635 N.E.2d 1204 (1994). See Commonwealth v. Rakes, 478 Mass. 22, 34, 82 N.E.3d 403 (2017) ("No particular length of time of reflection is required to find deliberate premeditation, and the decision may be made in only a few seconds"). To prove deliberate premeditation, the Commonwealth must demonstrate that the defendant had the opportunity to reflect, however brief, and actually reflected on the decision to kill. See Commonwealth v. Bins, 465 Mass. 348, 367, 989 N.E.2d 404 (2013). "As such, it is the sequence of the thought process rather than the time which is taken to think that is the key to determining whether someone acted with deliberate premeditation." Chipman, supra, citing Commonwealth v. Tucker, 189 Mass. 457, 494-495, 76 N.E. 127 (1905) (this thought process is often characterized as "[f]irst the deliberation and premeditation, then the resolution to kill, and lastly the killing in pursuance of the resolution"). In Commonwealth v. Colleran, 452 Mass. 417, 431-432, 895 N.E.2d 425 (2008), we set forth a number of factors to consider in deciding whether a defendant's conviction of murder in the first degree based on deliberate premeditation should be reduced. "Each case depends on its peculiar facts. No one fact is conclusive." Id. at 432, 895 N.E.2d 425, quoting Commonwealth v. Gaulden, 383 Mass. 543, 556, 420 N.E.2d 905 (1981). The defendant contends that the circumstances of his case embody each of the mitigating factors enunciated in Colleran, supra at 431-432, 895 N.E.2d 425. A careful review of the record belies this contention.

There was a brief verbal spat between two groups of teenagers. No punches were thrown. The interaction, although hostile, only consisted of name-calling and posturing. The squabble between the two groups ended, and the defendant turned away from the victim, got on his bicycle, and began to ride away. After having traveled approximately forty-five feet, the defendant stopped his bicycle and exclaim to his friend, "Fuck that shit." At that point, he then took out a handgun, cocked it, walked back toward the victim, and shot him in the chest.

The circumstances here indicate that the defendant did not shoot the victim in the midst of a senseless brawl or in the heat of sudden combat. It was reasonable for the jury to conclude that the defendant had time to reflect as he was riding away from the scene, and that his statement, "Fuck that shit," before cocking the gun and walking back toward the victim, evinced that the defendant had an opportunity to reflect, actually reflected on the situation, and formed the intent to kill before shooting the victim. In addition to a period sufficient for the defendant to have "cooled off" and formed the intent to kill, the events here also show that the defendant left the scene of the altercation and returned with the weapon with the intent to kill the victim. See Commonwealth v. Taylor, 463 Mass. 857, 870, 979 N.E.2d 722 (2012) (where ample time to cool off after fight but defendant returned to victim's house with firearm and shot victim, killing not in heat of passion); Commonwealth v. Jiles, 428 Mass. 66, 75, 698 N.E.2d 10 (1998) (defendant went to scene of crime with loaded gun for purposes of shooting suspected rival gang members). Cf. Commonwealth v. Jones, 366 Mass. 805, 809, 323 N.E.2d 726 (1975) (defendant was reasonably in fear of sudden attack by victim with razor blade immediately prior to killing).

There is no question that this was a minor controversy that exploded into the killing of a human being. See Commonwealth v. Baker, 346 Mass. 107, 109-110, 190 N.E.2d 555 (1963). See also Commonwealth v. Vargas, 475 Mass. 338, 364, 57 N.E.3d 920 (2016). It is also true that the defendant and the victim were strangers to each other and there was no indication of prior trouble between them. See Commonwealth v. Ransom, 358 Mass. 580, 583, 266 N.E.2d 304 (1971). The defendant was also sixteen at the time he shot and killed the victim. See Brown, 474 Mass. at 592, 52 N.E.3d 137 (upholding seventeen year old's conviction of murder in first degree based on deliberate premeditation). Indeed, the prosecutor acknowledged the defendant's age in his closing argument: "[O]ne of the factors in this case that you have to think about -- and I think I have to mention it, is how old [the defendant] was at the time -- sixteen years, sixteen years, ten months old. That's young. That's young. You will decide what to do." Closing arguments are not evidence, but the prosecutor's statement reflects that the defendant's age was known to the jury, and that fact was available for their consideration.

Although the defendant's age is not dispositive, the jury were free to consider the defendant's age in determining the extent of the defendant's guilt. See Okoro, 471 Mass. at 66, 26 N.E.3d 1092 (expert testimony concerning adolescent brain development admissible to assist jury in "determining whether the defendant was able to form the intent required for deliberate premeditation ... at the time of the incident"). However, in these circumstances, the defendant's age does not outweigh the compelling evidence that his actions were the product of deliberate premeditation, not spontaneity. Accordingly, we decline to exercise our authority under G. L. c. 278, § 33E, to reduce the defendant's conviction of murder in the first degree based on deliberate premeditation.

c. Court room closure claim. The defendant avers that his right to a public trial under the Sixth Amendment to the United States Constitution was violated because during jury empanelment the trial judge conducted individual voir dire of the jurors in a court room that was not open to the public. During the final pretrial conference, defense counsel specifically requested that the judge conduct individual voir dire of the jurors for purposes of asking questions related to self-defense. The judge allowed the request and set forth the procedure he intended to use for conducting the voir dire: After asking general questions of the venire in the court room where the case was being tried, prospective jurors would be individually brought into an adjacent court room and questioned by the trial judge in the presence of the defendant, counsel for both sides, and the court reporter. After the judge outlined this proposed procedure, defense counsel agreed to it and thanked the judge for accommodating her request for individual voir dire. Jury empanelment and the individual voir dire occurred exactly as the judge and defense counsel had agreed on at the final pretrial conference. Moreover, counsel and the defendant were present for the individual voir dire procedure and did not object.

Where defense counsel not only requested individual voir dire and agreed to the individual voir dire procedure used in this case, but also was present for it and did not raise a contemporaneous objection, we conclude that the defendant did not preserve his court room closure claim. Commonwealth v. Robinson, 480 Mass. 146, 154, 102 N.E.3d 357 (2018). See Ray, 467 Mass. at 121-122, 4 N.E.3d 221 (public trial right waived where "[c]ounsel for the Commonwealth and the defendant affirmatively agreed to the procedure"); Commonwealth v. Dyer, 460 Mass. 728, 734, 736-737, 955 N.E.2d 271 (2011), cert. denied, 566 U.S. 1026, 132 S.Ct. 2693, 183 L.Ed.2d 55 (2012) (defendant waived right to public trial by consenting to individual juror voir dire in judge's chambers). The defendant has failed to advance any grounds supporting his contention that the individual voir dire procedure used in his case created a substantial likelihood of a miscarriage of justice or otherwise resulted in a fundamentally unfair empanelment procedure. See Weaver v. Massachusetts, --- U.S. ----, 137 S.Ct. 1899, 1909-1910, 1912, 198 L.Ed.2d 420 (2017).

d. Relief under G. L. c. 278, § 33E. The defendant was sixteen years old at the time of the crime. After conviction, he received the mandatory sentence for murder in the first degree under G. L. c. 265, § 2 -- life without the possibility of parole. Pursuant to our holding in Diatchenko, 466 Mass. at 658-659, 1 N.E.3d 270, the defendant's life sentence remains in force, but the exception then present in G. L. c. 265, § 2, rendering him ineligible for parole, is no longer applicable.

Commonwealth v. Brown, 466 Mass. 676, 688-689, 1 N.E.3d 259 (2013), S.C., 474 Mass. 576, 52 N.E.3d 137 (2016). Accordingly, we affirm the defendant's convictions of murder in the first degree and carrying a firearm without a license, and affirm the order denying the defendant's motion for a new trial, but remand for resentencing consistent with Diatchenko, supra. We have reviewed the entire record pursuant to our obligation under G. L. c. 278, § 33E, and conclude that there are no grounds for reversing the defendant's convictions or for granting any other relief.

So ordered.

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

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

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

      In denying the defendant's motion for a continuance, the judge stated:
      "I don't think it would have been unreasonable at that time, a year-and-a-half ago, to immediately request funds for such an evaluation."
      The judge further explained:
      "Here we are on the eve of trial, for the first time without specific supporting information, you're asking me, without the Commonwealth having the opportunity to rebut, get their own evidence, witnesses, whatever, for what essentially is a several months long, at least, continuance to be able to fully explore this to be fair to both sides. I don't think the motion is fairly raised at the right time without any supporting information. And I'm going to deny it for those reasons."

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

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

      On appeal, the defendant does not claim that the advancements in adolescent brain development since his trial constitute newly discovered evidence. See Commonwealth v. Grace, 397 Mass. 303, 306, 491 N.E.2d 246 (1986) (evidence is newly discovered where it was "unknown to the defendant or his counsel and not reasonably discoverable" through "reasonable pretrial diligence"). Similarly, the defendant's appellate counsel, who was not the same counsel representing him at trial, stated at oral argument that he considered raising a claim of ineffective assistance of trial counsel, but ultimately chose not to raise the claim because, in 2003, lawyers who commonly represented defendants in murder trials were not aware of the issues concerning adolescent brain development, particularly prior to Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). After a full review of the record before us on appeal, we cannot say that counsel was ineffective.

      Even under the case law as it exists today, it is far from clear that a similar motion, three days before trial, would be allowed on this record -- a record devoid of evidence concerning this particular defendant's psychological or behavioral status or evidence suggesting that a scan of his brain would furnish helpful evidence. See Commonwealth v. Okoro, 471 Mass. 51, 66, 26 N.E.3d 1092 (2015) (expert testimony admissible concerning particular juvenile defendant's "capacity for impulse control and reasoned decision-making on the night of the victim's death" because it "did not amount to an opinion that the defendant [or any other fifteen year old] was incapable of forming the intent required for murder in the first or second degree simply by virtue of being fifteen").


author: Mme. Justice Budd did not participate.

text:
    COMMONWEALTH v. Khyam MAYES
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.
   Mme. Justice Budd did not participate.


text:
    COMMONWEALTH v. Robert D. GRISWOLD
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Tony D. HARRIS
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Ronald BALLARD
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Bernardo G. BREA
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Luis W. CRUZ
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. James M. BOWEN
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Genaro GUTIERREZ
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.
   Mr. Justice Gaziano did not participate.


text:
    COMMONWEALTH v. Emmanuel HERNANDEZ
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Meshach LITTLE
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. George JOHNSON
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Tino FERNANDES
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Bienvenido JEREZ
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Michael BURNS & another v. DEFELICE CORPORATION & others
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Johan BURGOS
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Roy IRBY
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.
   Mr. Justice Gaziano did not participate.


text:
    COMMONWEALTH v. Omar G. CAMPBELL
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Thomas C. CICCOLINI
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Riley DOBEL
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Radhames GONZALEZ
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Dennis JORDAN
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    ADOPTION OF JANET
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Dillon COPELAND
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Sergio V. LOBO
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Glenn R. BOVAT
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Nakiba BROWNE
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. David F. LEMAIRE, Jr.
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Janito DECARVALHO
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    ADOPTION OF KAYA
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Mark D. DEGRACE, Jr.
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    ADOPTION OF MARYANNE (and a companion case)
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Charles DINARDO
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Barbara ABERNATHY
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Arnaldo FLORES
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Wendy J. LAPORTE
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Mikal LACAZE
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Kiara MARK
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Thuy DUONG
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Israel A. MATTHEWS
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Jason C. CARLSON
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Nicholas GRIMBILAS
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    ADOPTION OF NINA
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    CARE AND PROTECTION OF XAVIAN
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Rinaldo DELGALLO
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Ryan DUNTIN
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Luis A. TORRES
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Mary Ann HICKEY v. Yaron Y. KIMELMAN & others
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Igor PEULIC
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Brandon C. PHILLIPS
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Dennis SENA
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Darrell SMITH
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Erich Gordon SORENSON
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Edy H. ORELLANA
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Edgardo RODRIGUEZ
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Kyle G. THOMAS
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    SELECT PORTFOLIO SERVICING, INC. v. Nancy M. NEEDEL & another
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Daniel CRAIG v. CONSERVATION COMMISSION OF MATTAPOISETT
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    James MASLOW & others v. William O'CONNOR, Jr., & others
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Robert A. ROTHSTEIN v. CONTRIBUTORY RETIREMENT APPEAL BOARD & another
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    TOWN OF WINTHROP v. WINTHROP POLICE BROTHERHOOD LOCAL 421
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Andrew DALTON v. DIVISION OF INSURANCE BOARD OF APPEALS & another
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY v. Patricia FEDERICO
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Nikolaos J. PATERAKIS v. Andrew C. NAJDA & others
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    George PETERSON v. Erin GOLDEN & others
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Richard ZIEHL
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Daniel SCOTT
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.
   Mme. Justice Budd did not participate.


text:
    COMMONWEALTH v. Luis MEDINA
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    THIRTY 2 RUTLAND STREET, LLC v. SHU YING CHAN & others
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Laura CREEDON v. William E. COMEAU
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    H & R BLOCK EASTERN ENTERPRISES, INC. v. Debra FELDMAN
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. James E. MCLEOD
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Diane LAWLESS v. DEPARTMENT OF EMPLOYMENT ASSISTANCE & another
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.
   Mme. Justice Cypher did not participate.


text:
    COMMONWEALTH v. Stephen MCVEY
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. QUILLAN Q., a juvenile
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Daniel RHODES
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Lisa C. PAZOL & others v. TOUGH MUDDER INC. & others
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Angel RIVERA
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Andrew L. MCMULLEN
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Owen NOEL
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Elijah Jordan O'WARD
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Albert TOLIAFERRO
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Richard A. TROTT, Sr.
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Kevin WATKINS
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.
   Mme. Justice Budd did not participate.


text:
    COMMONWEALTH v. Allen WOOD
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Arthur COURNOYER v. DEPARTMENT OF STATE POLICE & another
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    D.R. v. D.A.
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    David L. FULLER & another v. DEUTSCHE BANK NATIONAL TRUST CO. & another
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    John DOE, Sex Offender Registry Board No. 169 v. SEX OFFENDER REGISTRY BOARD
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    Pamela DENAPOLI & Another v. Clarence W. HART & Others
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Jorge Luis POLANCO
    Supreme Judicial Court of Massachusetts.
    June 29, 2018
    Appellate review denied.