Argued January 9, 2015.
Indictments found and returned in the Superior Court Department on March 27, 2002.
The cases were tried before Patrick F. Brady, J., and a motion for a new trial, filed on March 18, 2010, was heard by him.
Emanuel Howard for the defendant.
Helle Sachse, Assistant District Attorney, for the Commonwealth.
Afton M. Templin, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, & Duffly, JJ.
[28 N.E.3d 438] Cordy, J.
After a jury trial, the defendant, Michael Jackson, was convicted of murdering Jose Lane, the unlawful possession of a
firearm, and the unlawful possession of ammunition. At trial, the defendant had requested that the judge instruct the jury that duress was an available defense to intentional murder, which the judge declined to do. Prior to sentencing, the defendant orally moved for a new trial and for a mistrial when it was learned that one of the jurors was not a United States citizen. Both motions were denied. On March 16, 2006, the judge imposed a mandatory sentence of life in State prison on the defendant's conviction of murder in the first degree, a concurrent sentence of four and one-half years in State prison for the unlawful possession of a firearm, and a concurrent sentence of one year in a house of correction for the unlawful possession of ammunition.
On March 22, 2010, the defendant filed a motion for a new trial under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), on three grounds, the first two of which were rejected without a hearing on December 2, 2010, and the third denied on May 3, 2011, after an evidentiary hearing. The denial of this motion was consolidated with the defendant's direct appeal.
In his appeal, the defendant contends that the judge erred in denying his request to instruct the jury on duress, that the inclusion of a noncitizen juror on the jury constituted structural error requiring a new trial, and that his right to a public trial pursuant to the Sixth Amendment to the United States Constitution was violated when his fiancé e, sister, and step-grandmother were asked to leave the court room during a portion of the empanelment process. For the reasons stated below, we find no reversible error, and discern no basis to exercise our authority under G. L. c. 278, § 33E, to reduce or set aside the [28 N.E.3d 439] verdict of murder in the first degree. Therefore, we affirm the defendant's convictions.
We recite the facts in the light most favorable to
the Commonwealth, while reserving certain details for discussion in conjunction
with the issues raised.
a. The killing.
At approximately 10:30 p.m. on January 24, 2002,
Samuel Dew was standing on the sidewalk near the steps leading up to the front
porch of the home of the victim's sister in the
Dorchester section of Boston. The victim was standing on the first landing leading to the porch, sharing a cigar with Dew, who noticed a person walking on the street toward them. When the person was about an arm's length away, Dew recognized him as the defendant, Michael Jackson, someone he had met a dozen or so times in the course of Dew's work at the Dorchester Reporting Center, a Department of Youth Services facility. The three exchanged pleasantries, and afterward, the defendant turned as if to walk away. The defendant then reached behind his back, brought out what Dew described as a shiny metal object, and pointed it at the victim. When Dew realized the object was a gun, he turned and ran away from the house. He last saw the victim turning and running up the stairs toward ...