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Commonwealth v. Lugo

Supreme Judicial Court of Massachusetts, Norfolk

April 24, 2019


          Heard: November 5, 2018.

         Indictments 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 by him.

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

          Katherine C. Essington for the defendant. Stephanie Martin Glennon, Assistant District Attorney, for the Commonwealth.

          The following submitted briefs for amici curiae:

          Marsha 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.

          John P. Zanini, Assistant District Attorney, for District Attorney for the Berkshire District & others.

          Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          CYPHER, J.

         In 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.[1] 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.[2]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).

         In 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.[3]


         We 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 to suppress.

         The 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.

         The 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.

         Police 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.

         At the 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.

         2. Procedural history.

         The 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 hearing.

         The 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 ...

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