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Commonwealth v. Okoro

Supreme Judicial Court of Massachusetts, Plymouth

March 23, 2015

Emmanuel Okoro

Argued September 3, 2014.

[As Modified on May 1, 2015].

Indictment found and returned in the Superior Court Department on February 29, 2008.

The case was tried before Paul E. Troy, J.; a motion for a new trial, filed on January 7, 2011, was considered by him; a motion for a new trial, a reduction in verdict, and resentencing, filed on

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September 13, 2012, was heard by him; and a motion for reconsideration was considered by him.

The Supreme Judicial Court granted an application for direct appellate review.

Ruth Greenberg for the defendant.

Matthew Libby, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Jeanne M. Kepthorne for Markeese Mitchell.

Barbara Kaban, Committee for Public Counsel Services, for Youth Advocacy Division, Committee for Public Counsel Services, & others.

Laura M. Banwarth for Massachusetts Association of Criminal Defense Lawyers.

Richard L. Goldman for Terrance Pabon.

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


[26 N.E.3d 1094] Botsford, J.

The defendant, Emmanuel Okoro, appeals from his conviction of murder in the second degree. He was fifteen years old at the time of the offense, January 1, 2008. Pursuant to the sentencing statutes then in effect, the defendant received a mandatory sentence of life imprisonment with eligibility for parole after fifteen years. The defendant argues that in light of the United States Supreme Court's decision in Miller v. Alabama, 132 S.Ct. 2455, 2460, 2469, 183 L.Ed.2d 407 (2012), and this court's decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 658, 1 N.E.3d 270 (2013) ( Diatchenko I ), the defendant's mandatory life sentence constitutes a cruel and unusual punishment in violation of both the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights, and also violates constitutional guarantees of due process and separation of powers. The defendant further argues that his conviction should be overturned because (1) the trial judge erroneously prevented him from introducing expert testimony and arguing that the way the brain develops in children and adolescents makes the condition of being a youth itself a mitigating factor to be considered in determining whether the defendant was capable of forming the requisite mental state for murder; and (2) the judge erred in declining to instruct the jury on defense of another. For the reasons discussed below, we conclude that the defendant's sentence does meet the requirements of the Eighth Amendment and art. 26, as well as other constitutional rights, and we reject the defendant's challenges to his underlying conviction.

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1. Facts.

Although witnesses' accounts differed substantially and included contradictory testimony as to the exact events on the night of the killing, the jury could have found the following. On December 31, 2007, the defendant, aged fifteen, had been drinking and smoking marijuana with friends and family and was very drunk. Eventually, the defendant and his companions, including his sister, Iesha Strickland, attempted to go to a nearby New Year's Eve party, but they were turned away at the door by the victim, Markeen Starks, and another young man. The victim was known to the defendant and his sister, and had been involved in a series of violent incidents that appeared [26 N.E.3d 1095] to constitute retaliation against Strickland after she had spoken to the police regarding an earlier killing.

At some point before midnight, the defendant and his companions left the site of the New Year's Eve party and went home. After the party ended, a crowd gathered outside the party site and a fight broke out. The defendant and his companions saw this crowd and went toward it, and this time, the defendant was carrying a knife. The defendant and the victim confronted one another, and although it is unclear who started the physical fight between them, the defendant stabbed the victim multiple times.[1] The victim ultimately died from these wounds.

The defendant presented evidence at trial concerning the level of his cognitive functioning, as well as concerning his psychological profile and family background. In particular, the defendant was tested shortly after the stabbing incident and found to have an intelligence quotient (IQ) score of 75 or 76, which placed him in the fifth percentile for youths his age in terms of cognitive functioning. This level of cognitive functioning has been characterized as " borderline deficient," and is associated with difficulties in problem solving, flexible thinking, and detection of options. In addition, psychological testing indicated that although the defendant was not severely mentally ill and was able to perceive reality accurately, he was vulnerable to " emotional disregulation," meaning that under stressful conditions he had a tendency toward simplified approaches to problem solving and being primarily influenced by emotions. The defendant also previously had been diagnosed with oppositional defiant disorder, which is typically associated with rule breaking and " profoundly

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annoying" behaviors, although not typically with violence.

A forensic psychologist who examined the defendant opined that much of the defendant's personality presentation could have been related to the combination of his cognitive limitations and his history of " exposure to chronic and severe domestic violence." In particular, the defendant suffered abuse at the hands of his father for approximately two years, including punishments such as being forced to stand with his hands in the air for hours at a time or to kneel on hard, uncooked rice and salt. At around age ten, the defendant was removed from his parents' home and placed in foster care, where he remained for three and one-half years. During that time, he went through seven different foster homes due to behavioral problems, and he eventually went to live at a group residential home for youth. By the time the defendant was about thirteen years old, his father had been deported to Nigeria, and the defendant was allowed to return to live with his mother, but by then he was struggling with poor anger management, disruptive behavior, and alcohol abuse problems. Although he was taking several types of prescribed medications to help with his behavior when he returned to his mother, his mother decided to " wean him off" these medications, and instead allowed him to drink alcohol and smoke marijuana, because it kept him " more calm."

2. Procedural history.

In February, 2008, the defendant was indicted on a charge of murder in the first degree, and he was tried in December, 2010. The jury found the defendant guilty of murder in the second degree,[2] and he was sentenced to life imprisonment with parole eligibility after fifteen years. See G. L. c. 265, § 2, [26 N.E.3d 1096] as amended through St. 1982, c. 554, § 3; G. L. c. 127, § 133A, as amended through St. 2000, c. 159, § 230. See also G. L. c. 119, § 72B, inserted by St. 1996, c. 200, § 14. On January 7, 2011, the defendant moved for a new trial or, alternatively, for a reduction of the verdict to manslaughter pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). He also filed a notice of appeal from his conviction on January 13, 2011. The ...

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