found and returned in the Superior Court Department on August
13, 2010. The cases were tried before Mary-Lou Rup, J., and a
motion for a new trial was heard by her.
Jay Black for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the
M. Schiff & David Rossman, for Omar Abdur-Rahim &
others, amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Kafker, JJ.
convicted the defendant of murder in the first degree on
theories of deliberate premeditation and extreme atrocity or
cruelty. The judge sentenced the defendant to life
imprisonment without the possibility of parole on the murder
conviction. On appeal, the defendant argues that (1)
the judge erred in declining to instruct the jury on
voluntary manslaughter; (2) the defendant's age at the
time of his crimes -- nineteen years old -- renders his
sentence unconstitutional; and (3) the judge should have
granted a new trial due to a partial court room closure. The
defendant also requests that we exercise our power under G.
L. c. 278, § 33E, to either reduce his convictions or
grant a new trial. Because we find neither reversible error
nor a reason to exercise our authority under § 33E, we
recite certain facts the jury could have found, reserving
other details for later discussion. In July 2010, the fifteen
year old daughter of the murder victim (victim or mother) was
dating the defendant, who was nineteen. The daughter lived in
Hampden with her sister, her stepfather, and her mother. The
daughter awoke in her bedroom on July 21 to a gloved hand
over her mouth. There was a knife against her throat and a
masked face staring at her. The daughter knew from the
assailant's voice and clothing that he was the defendant,
and she later recognized him when he took off his mask. The
defendant tried to pull the daughter's shorts off
multiple times but never entirely removed them. He eventually
put the knife down and explained to the daughter, "I was
trying to see what you would do in that situation. ... I was
trying to show you the world wasn't safe."
daughter then told her mother the defendant was in her room.
They went into the room and found the defendant hiding in a
closet. After the victim told the defendant to "[g]et
out," the defendant left.
the July 21 incident, the victim became scared that the
defendant would return to the house. She started locking the
doors at night. The victim also told her daughter that the
victim would not let anything bad happen to her, and that if
the defendant came back he would have to get through the
night on July 29, the daughter sent a text message to the
defendant stating that their relationship was over. In the
morning on July 30, the family dog started barking in the
victim's house. The stepfather investigated and noticed
the cellar door was open. He closed it, and then went into
the kitchen to find the victim running toward him. The victim
said the defendant was in the daughter's room. According
to the stepfather's testimony, "Before she finished
saying it, [the defendant] came storming out towards us"
with a knife. The defendant sliced the stepfather's
throat and cut him above the eye. The stepfather went to the
door leading outside but could not open it, so he turned
around and saw the defendant "standing over" the
victim with the knife. Although the victim was hidden behind
a counter, the stepfather heard the victim making sounds
similar to "somebody getting punched." As the
stepfather escaped outside through the door, the defendant
stabbed him in the back multiple times.
victim's daughter left her bedroom when she heard her
stepfather's screams. She saw the defendant stabbing her
mother. When the daughter tried to escape, the defendant
dragged her into the kitchen by her hair. The daughter saw
the defendant slice her mother's throat, and then she
trial, defense counsel admitted in the opening statement that
the defendant killed the victim, and then stated that the
evidence would show the defendant was guilty of manslaughter
rather than murder. After the judge declined to instruct the
jury on manslaughter, defense counsel argued in closing that
the defendant was not guilty of murder because he did not act
with malice, but rather in response to the victim confronting
him with a ...