Argued: January 6, 2015.
Indictments found and returned in the Superior Court Department on June 22, 2006.
The case was tried before S. Jane Haggerty, J.; a motion to reduce the verdict was heard bye her; and a motion for a new trial, filed on June 13, 2012, was also heard by her.
The Supreme Judicial Court granted an application for direct appellate review.
John F. Palmer for the defendant.
Bethany Stevens, 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, Lenk, & Hines, JJ.
[31 N.E.3d 577] Hines, J.
On July 24, 2007, a jury convicted the defendant, Juan
Pagan, of murder in the first degree on the theory of deliberate premeditation. At trial, there was no dispute that the defendant, when he was sixteen years of age, stabbed Alex Castro Santos (victim) to death. His defense was that he was not guilty of murder because he had acted in self-defense and with a mental impairment, namely attention deficit hyperactivity disorder (ADHD) and depression, which, when viewed in the context of his age, caused him to act reflexively and instinctively. One month following his conviction, the defendant filed a motion pursuant to Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), to reduce the verdict to murder in the second degree, which the trial judge granted and from which the Commonwealth appeals. After he was resentenced, the defendant filed a notice of appeal. Subsequently, on June 13, 2012, the defendant filed a motion for a new trial in the Superior Court, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), arguing that the court room had been closed during jury empanelment in violation of his right to a public trial under the Sixth Amendment to the United States Constitution. Following a hearing, a judge denied the motion. The defendant thereafter filed a separate appeal from this order. The defendant's direct appeal and his appeal from the denial of his motion for a new trial were consolidated in the Appeals Court, and we granted the Commonwealth's application for direct appellate review. We affirm the orders allowing a reduction of the verdict to murder in the second degree and denying the defendant's motion for a new trial, and affirm the defendant's conviction.
We recite the facts the jury could have found based on the Commonwealth's case, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), reserving certain details for our discussion of the specific issues raised. During the late evening of May 14, 2006, a group of young men in their late teens and early twenties gathered at the apartment of Stephen Peddle in Lowell to socialize and to play cards. Peddle and some of the men were or had been affiliated with GRIP, a housing program for homeless or displaced youth. Although not involved with GRIP at the time, the defendant was living with Peddle.
Among those gathered at Peddle's apartment that night were Peddle, the defendant, Michael May, and Ramon Normil. At around 10:30 p.m., Brian Patrick Murphy, Markeem Bishop, Joshua Spencer Apostolos, and Adam Costas joined them. Approximately twenty minutes later, the victim arrived. He was upset because his friend had been " jumped" by some member or members of a gang. The victim blamed the defendant, Normil, and Peddle for the incident because he suspected they associated with the gang that allegedly had been involved. When asked, Normil informed [31 N.E.3d 578] the victim that he did not know who had participated in the attack. The victim told everyone that friends were looking for members of that gang, implicitly suggesting there would be retaliation. The defendant grew upset, stating that some of those people were his friends.
Having exhausted the last of a " blunt," or marijuana cigarette, Murphy, Costas, Bishop, and the victim left, heading to a nearby convenience store to purchase a cigar. They were gone for about five to ten minutes before returning to Peddle's apartment. When they arrived, the defendant and May were no longer there.
The defendant and May left to visit a friend of the defendant's, Nicholas George Giuliani. On approaching his automobile, the defendant and May saw that some of the windows had been broken. The defendant told May that he suspected that the victim had been responsible.
After briefly visiting Giuliani, the defendant and May returned to Peddle's apartment. The defendant was upset and verbally confronted the victim, who stated that he had had a BB gun earlier, but not anymore. The victim went on to deny any involvement with breaking the windows of the defendant's vehicle, but stated that he knew who had done it and would not tell the defendant. The defendant asked the rest of the group whether anyone had seen anything. No one volunteered information about the incident. The victim decided to leave and started saying
goodbye. He told the defendant he was " sorry" and it just had been a " joke." The victim repeated that he was upset about his friend and wanted to go find the perpetrators. Apostolos, a friend of the victim, testified that the victim patted his waist area indicating that he had a weapon. The defendant asked the victim tauntingly, " Are you ready to use that?" The victim replied that he was, and the defendant " got quiet."
After taking a cigarette from Normil, the victim headed toward the door, which was in the direction of the defendant, and stood inside the doorway. The defendant, meanwhile, had taken a seat on a mattress in the living room and had picked up a large combat-style knife with an eight-inch blade and began twirling it. Murphy testified that the victim walked toward the defendant; Apostolos testified that the victim turned toward the direction of the defendant from the doorway. The defendant abruptly jumped up from the mattress, [31 N.E.3d 579] stepped around Apostolos, punched the victim three times in ...