Heard: November 5, 2018.
found and returned in the Superior Court Department on
December 21, 2011, and August 19, 2014. Pretrial motions to
suppress evidence were heard by Thomas A. Connors,
J., the cases were tried before him, and a motion for a new
trial and resentencing, filed on May 9, 2017, also was heard
Supreme Judicial Court granted an application for direct
Katherine C. Essington for the defendant. Stephanie Martin
Glennon, Assistant District Attorney, for the Commonwealth.
following submitted briefs for amici curiae:
L. Levick, Karen U. Lindell, & Riya Saha Shah, of
Pennsylvania, & Laura Chrismer Edmonds for Juvenile Law
Center & others.
Nicholas K. Mitrokostas, Eric T. Romeo, & Jaime A. Santos
for Louis D. Brown Peace Institute & others.
Meredith Shih for Boston Bar Association.
Elizabeth Doherty for youth advocacy division of the
Committee for Public Counsel Services & others.
P. Zanini, Assistant District Attorney, for District Attorney
for the Berkshire District & others.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
November 2011, the victim, Kyle McManus, was murdered after a
plan to rob him of marijuana failed. A jury convicted the
defendant, Nathan Lugo, of murder in the second
degree. The defendant, who was seventeen years old
at the time of the murder, was sentenced to the mandatory
term of life imprisonment with eligibility for parole after
fifteen years.On appeal, the defendant argues that the
mandatory sentence is unconstitutional because it does not
allow the judge to exercise his or her discretion to impose
anything less than a life sentence with the possibility of
parole. The defendant contends that the judge erred in
denying his motion to continue his sentence so that he could
present evidence related to his juvenile status. He further
argues that (1) the judge erred in denying his request to
instruct the jury on accident; (2) his counsel was
ineffective for not requesting other jury instructions; and
(3) the judge erred in denying the defendant's motion to
suppress the warrantless "pinging" of his cellular
telephone (cell phone).
Commonwealth v. Okoro, 471 Mass.
51, 62 (2015), we concluded that the mandatory sentencing
scheme as applied to juveniles convicted of second-degree
murder was constitutional. We left for another day, however,
the question whether juvenile homicide offenders require
individualized sentencing. We stated: "Given the
unsettled nature of the law in this area and the indication
that it is still evolving, we think it prudent to allow this
process to continue before we decide whether to revisit our
interpretation of [Miller v.
Alabama, 567 U.S. 460 (2012), ] and the scope of its
holding." Okoro, supra at 61. Now,
nearly four years after our decision in Okoro, the
defendant asks us to address that very issue. For the same
reasons stated in Okoro, we continue to leave the
individualized sentencing question for another day and reject
the defendant's other arguments.
summarize the facts that the jury could have found, reserving
pertinent facts for the discussion of the defendant's
arguments. In addition, we reserve the facts that the motion
judge found for the discussion of the defendant's motion
defendant and three friends, Alison Deshowitz, Devante
Thames, and Brian Moulton, developed a plan to rob the victim
of marijuana. Deshowitz, who had dated the victim, contacted
him under the guise that she was arranging a drug
transaction. The plan was for the group to meet the victim at
a restaurant, bring him to his home to secure the marijuana,
and then rob him of the marijuana. The defendant drove the
group in his mother's black sport utility vehicle (SUV)
to meet the victim. On the way to the restaurant, he informed
the group that he was armed with a revolver.
group met the victim at the restaurant and drove him to his
house to get the marijuana. After going inside the
victim's house to measure the marijuana, the victim and
Thames walked back to the SUV that was idling in the
victim's driveway. The victim leaned into the front
passenger's side window of the SUV to collect the money
for the marijuana that Thames already was holding. Moulton
displayed the money to be used to complete the drug
transaction, and the victim commented that it looked to be
less than the agreed-upon purchase price. Upon hearing the
victim's suspicions, the defendant "threw the car in
reverse" and backed out of the driveway with the victim
still leaning through the window. A scuffle ensued between
the victim and Moulton as the victim attempted to grab the
money in Moulton's hand and get out of the moving SUV.
The victim did not have a weapon but was carrying an open
beer can or bottle that he had taken from the restaurant. The
victim shouted, "Help," before a loud pop was
heard; the SUV sped away, leaving the victim behind. Thames
testified that the defendant extended his hand with the gun
across the passenger seat. Moulton bent down, and the
defendant shot the victim in the chest. The victim was
pronounced dead at the hospital shortly thereafter.
quickly discovered that the victim was last seen alive with
Deshowitz. After going to Deshowitz's house and learning
that she was not home, police spoke to her on her cell phone.
Police then attempted to locate her cell phone by
"pinging" it. Deshowitz's cell phone location,
coupled with other information that police gathered,
indicated that she was located at the defendant's house.
Police proceeded to the defendant's house, where they
arrested the defendant and the group.
defendant's house, police discovered a black SUV in the
garage. Police recovered several bags of marijuana in the
defendant's bedroom and a .22 caliber revolver, later
revealed to be the murder weapon, hidden in a hollowed-out
hole under a patio brick.
offenses were committed three months before the
defendant's eighteenth birthday. At the conclusion of
trial, he was sentenced to life in prison with the
possibility of parole after fifteen years on the charge of
murder in the second degree. At the sentencing hearing,
although defense counsel acknowledged that the judge had no
discretion in imposing a sentence for murder in the second
degree, he asked for a continuance so that he could present
evidence of mitigation. Defense counsel informed the judge
that he had retained an expert in juvenile psychology and
that he wanted to present the expert's testimony at
sentencing. According to defense counsel, this testimony
would have discussed "unique things about juveniles,
their perception, their need for instant gratification, their
likelihood of success and rehabilitation . . . all things
that are important." The judge acknowledged the possible
importance of this information when the defendant is eligible
for parole, but denied the defendant's request. The judge
believed that the information was better suited to be
presented to the parole board at the time of the parole
defendant timely filed a notice of appeal, which was stayed
so that he could pursue a motion for a new trial. In his
motion, the defendant argued, among other things, that the
statutorily mandated sentence of life with the possibility of
parole after fifteen years violated provisions of the State
and Federal Constitutions; certain instructions given on the
homicide charge were erroneous; and counsel was ineffective
in failing to object to improper ...