Commonwealth v. Weaver , 474 Mass. 787 ( 2016 )


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    SJC-10932
    COMMONWEALTH   vs.   KENTEL MYRONE WEAVER.
    Suffolk.       January 12, 2016. - July 20, 2016.
    Present:     Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
    Homicide. Firearms. Constitutional Law, Admissions and
    confessions, Voluntariness of statement, Waiver of
    constitutional rights by juvenile, Assistance of counsel,
    Public trial. Evidence, Admissions and confessions,
    Voluntariness of statement. Practice, Criminal, Capital
    case, Admissions and confessions, Voluntariness of
    statement, Waiver, Assistance of counsel, Public trial,
    Motion to suppress, New trial.
    Indictments found and returned in the Superior Court
    Department on December 5, 2003.
    A pretrial motion to suppress evidence was heard by
    Geraldine S. Hines, J.; the cases were tried before Stephen E.
    Neel, J.; and a motion for a new trial, filed on June 1, 2011,
    was heard by Geraldine S. Hines, J., and Jeffrey A. Locke, J.
    Ruth Greenberg for the defendant.
    John P. Zanini, Assistant District Attorney, for the
    Commonwealth.
    CORDY, J.    On the evening of August 10, 2003, fifteen year
    old Germaine Rucker was shot and killed. The defendant, who was
    2
    sixteen at the time of the shooting, subsequently admitted to
    committing the murder after prolonged questioning by the police
    and by his mother.
    Prior to trial, the defendant filed a motion to suppress
    his statements to the police.    That motion was denied following
    an evidentiary hearing.    In 2006, a jury convicted the defendant
    of murder in the first degree on the theory of deliberate
    premeditation.    He was also convicted of the unlicensed
    possession of a firearm.    In 2011, the defendant filed a motion
    for a new trial under Mass. R. Crim. P. 30, as appearing in 
    435 Mass. 1501
     (2001), claiming that he was denied the effective
    assistance of counsel in two respects:    first, that counsel
    failed to adequately investigate the defendant's claim that his
    statements to police were coerced because counsel did not
    consult with a mental health expert or present expert testimony
    about the voluntariness of those statements; second, that
    counsel failed to object to the closure of the court room during
    jury empanelment in violation of the defendant's right to a
    public trial under the Sixth Amendment to the United States
    Constitution.    The motion was bifurcated, and different judges
    considered, and ultimately rejected, the claims.    The denial of
    the motion was consolidated with the defendant's direct appeal.
    In his appeal, the defendant asks us to expand our rule
    requiring the corroboration of extrajudicial statements as it
    3
    applies to juvenile confessions pursuant to our extraordinary
    power under G. L. c. 278, § 33E.     He also claims error in (1)
    the denial of his motion to suppress; (2) the denial of his
    motion for a new trial; and (3) the denial of his motion for a
    directed verdict on the firearms charge.     We affirm the
    defendant's convictions and decline to grant relief under G. L.
    c. 278, § 33E.
    1.   Facts.   We recite the facts in the light most favorable
    to the Commonwealth, reserving certain details for our analysis
    of the legal issues raised on appeal.
    On August 10, 2003, the victim went to Wendover Street to
    sell some small jewelry charms to a woman and her children.
    After the transaction, the woman reentered her home, and the
    daughter remained outside.     The woman heard two gunshots.   She
    stepped back out of the doorway and saw the victim lying in the
    street on top of his bicycle.     The bag in which he had carried
    the jewelry was gone.      The woman went back inside and telephoned
    911.
    The daughter testified that, just before the shooting, she
    noticed a group of males of varying ages gathered at the top of
    Dudley and Wendover Streets.     The group rushed toward the
    victim, who threw his bag on the ground.     They began to fight.
    An older member of the group, who appeared to be about thirty
    years of age and was wearing a straw hat, threw the first punch.
    4
    A younger member of the group, who appeared to be about fifteen
    years of age and was wearing jean shorts and a white "doo-rag",
    picked up the victim's bag and ran toward Dudley Street.    The
    daughter ran up the steps toward her front door and heard two
    gunshots fired in quick succession.
    A third witness, who lived on nearby Humphreys Street, was
    sitting outside on his second-floor porch when he heard gunshots
    from the direction of Wendover Street.    He then saw a young
    black man run down Humphreys Street away from Dudley Street.
    The young man wore dark jeans and was trying to pull off a dark
    shirt, under which he wore a white t-shirt.    The young man
    stumbled and hopped and pulled a pistol from his pants leg.      The
    pistol had a flat handle and a round silver barrel.    As he did
    so, the baseball cap he was wearing fell off of his head.      The
    cap was collected by the police later that evening.
    The cap was a Detroit Tigers baseball cap, with a stitched
    white "D" on the front and what appeared to be hand-drawn or
    painted white "D" letters on the sides.    The police had seen the
    defendant wearing a cap matching the same description when they
    spoke to him approximately two weeks before the victim was
    murdered.   Deoxyribonucleic acid (DNA) matching the defendant's
    DNA profile was found on the hatband.    An analyst testified that
    the possible contributors to the DNA profile found on the
    5
    hatband were one in 40 billion Caucasians, one in 1.6 billion
    African-Americans, and one in 65 billion Southeastern Hispanics.
    A ballistics expert testified that shell fragments
    recovered from the victim were consistent with having been fired
    from a revolver and not a semiautomatic weapon.    A revolver has
    a round barrel, consistent with the description of the handgun
    in the possession of the fleeing suspect, and does not eject
    shell casings.   No shell casings were recovered from Wendover
    Street.
    When emergency medical services arrived at the scene, the
    victim showed no signs of life.   He had a bleeding head wound
    with brain matter visible and a second wound to his lower right
    back.   The medical examiner who performed the autopsy on the
    victim determined that the cause of death was the two gunshot
    wounds.
    At trial, there was a great deal of testimony regarding the
    investigation leading up to the incriminating statements that
    the defendant made to police, especially his admission, made
    after discussing the particulars with his mother, that he "shot
    the [victim]."   The defense strategy was to claim that the
    defendant’s statements were involuntary, and the result of
    coercion by a combination of lengthy questioning first by police
    and then by his mother, Iris Weaver (Weaver).   We leave the
    details concerning the questioning of the defendant and the
    6
    resultant incriminating statements to the discussion of the
    defendant's motion for a new trial, infra, as the trial
    testimony of the involved police officers and the defendant's
    mother, viewed in the light most favorable to the Commonwealth,
    are substantively identical to the testimony given at the
    evidentiary hearing on the motion.
    At the conclusion of the trial, a humane practice
    instruction was given to the jury.   The judge instructed the
    jury that the Commonwealth bore the burden of proving beyond a
    reasonable doubt that the defendant made his statement to the
    police "voluntarily, freely, and rationally."   The judge further
    stated:
    "In order for a statement of a defendant to be
    voluntary, it must not, in any way, be coerced by physical
    intimidation or psychological pressure. Under the law of
    the Commonwealth of Massachusetts, a statement may be
    coerced not only by law enforcement officials but also by a
    private citizen. That is, coercion -- You may find that the
    defendant was coerced. Let me put it this way, coercion may
    occur not only by law enforcement officials, but in order
    to be coercion, it may also be caused by a private citizen.
    A statement made by a defendant is not voluntary if it is
    psychologically coerced. Therefore, if you find that the
    statement made by the defendant was coerced by his mother
    or any other person, you may not consider that statement in
    reaching a verdict."
    During deliberations, the jury asked for a legal definition
    of "psychological coercion."   After receiving the question, the
    court adjourned for the day.   Neither the judge nor counsel
    located any case law defining the term before court reconvened
    7
    the next morning.     The judge then repeated his original
    instructions to the jury, adding that the jurors should "give
    the term psychological coercion its plain and ordinary meaning
    as you understand it.       But I will tell you that psychological
    coercion refers to inappropriate or inordinate psychological
    pressure."   The jury subsequently convicted the defendant.
    2. Discussion.    a.    Corroboration rule.   In Commonwealth v.
    Forde, 
    392 Mass. 453
    , 458 (1984), we announced the corroboration
    rule, which "requires corroboration that the underlying crime
    was in fact committed, thus preventing convictions against
    persons who have confessed to fictitious crimes."       Commonwealth
    v. DiGiambattista, 
    442 Mass. 423
    , 430 (2004), citing Forde,
    
    supra at 458
    .   In DiGiambattista, we declined to expand the rule
    to require corroboration that a defendant was the actual
    perpetrator of the crime, or to require a showing that a
    confession is reliable under the circumstances in which it was
    given.   DiGiambattista, supra at 431-432.      Acknowledging the
    phenomenon of false confessions, we concluded that the problem
    is best addressed through the "strict analysis of the
    circumstances of [an] interrogation as they affect the
    voluntariness of a defendant's statement."       Id. at 432.
    On appeal, the defendant asks us to reconsider expanding
    the corroboration rule as it applies to juvenile confessions in
    light of research that juveniles are more likely than adults to
    8
    confess to crimes they did not commit -- research to which no
    citation is provided.   He argues that his case illustrates the
    need for an expanded rule requiring additional evidence that the
    accused perpetrated the crime because although there is no
    question that a crime occurred -- satisfying Forde -- there is
    no evidence, aside from the defendant's confession, linking him
    to it.
    We decline to expand the rule on this record.   The
    defendant fails to articulate why our practice of rigorously
    examining the voluntariness of a defendant's confession is an
    inadequate prophylactic measure against the use of false
    confessions in securing a conviction.   Indeed, even if we were
    to expand the rule, it would not aid the defendant's case.      In
    addition to the defendant's admission, the Commonwealth
    presented evidence at trial linking the defendant to the murder,
    including testimony that (1) a young man was seen fleeing from
    the scene of the shooting; (2) the young man had a firearm
    fitting the description of a revolver in his possession as he
    fled; (3) the young man was wearing a distinctive baseball cap,
    which fell to the ground; (4) the cap belonged to the defendant;
    and (5) the victim and the defendant were known to each other.
    The defendant also asks for unspecified relief under G. L.
    c. 278, § 33E, on the basis that the jury could not properly
    assess the voluntariness of his admission in this case.    We
    9
    disagree, as the jury heard extensive evidence about the
    circumstances surrounding the defendant's statements, and were
    properly instructed on the humane practice rule.    We therefore
    decline to grant relief under § 33E.
    b.   Motion to suppress the defendant's statements.   The
    defendant next asserts error in the denial of his pretrial
    motion to suppress his statements to the police based on his
    claim that they were involuntary and coerced.    The Commonwealth
    argues that the defendant waived this argument by failing to
    brief the issue in accordance with Mass. R. A. P. 16 (a) (4), as
    amended, 
    367 Mass. 921
     (1975). 1   In his brief, the defendant does
    not dispute the factual findings of the judge who heard the
    motion (pretrial motion judge) as to the credibility of
    witnesses, but the defendant states that he "does dispute the
    conclusions of law."   The defendant then states that he
    incorporates by reference the authorities cited in the
    defendant's application to a single justice in the county court
    for leave to prosecute an interlocutory appeal "in the interests
    of judicial economy and brevity."    The defendant additionally
    cites to authorities apparently not cited in the prior filings,
    1
    Rule 16 (a) (4) of the Massachusetts Rules of Appellate
    Procedure, as amended, 
    367 Mass. 921
     (1975), requires that the
    appellant's argument "contain the contentions of the appellant
    with respect to the issues presented, and the reasons therefor,
    with citations to the authorities, statutes and parts of the
    record relied on. . . . The appellate court need not pass upon
    questions or issues not argued in the brief."
    10
    but does not provide complete citations or any argument as to
    why those authorities undermine the rulings of the pretrial
    motion judge.
    We agree with the Commonwealth that the defendant's
    treatment of this issue in his brief does not rise to the level
    of appellate argument required by rule 16 (a) (4) and is
    therefore technically waived. 2   However, review under G. L.
    c. 278, § 33E, requires us "to consider all issues apparent from
    the record, whether preserved or not."    Commonwealth v.
    Randolph, 
    438 Mass. 290
    , 294 (2002).    Thus, we review the denial
    of the motion to suppress, and if there was error, we determine
    whether the error created a substantial likelihood of a
    miscarriage of justice in the verdict.    
    Id.
    "In reviewing a ruling on a motion to suppress, we accept
    the judge's subsidiary findings of fact absent clear error 'but
    conduct an independent review of his ultimate findings and
    conclusions of law.'"   Commonwealth v. Scott, 
    440 Mass. 642
    , 646
    (2004), quoting Commonwealth v. Jimenez, 
    438 Mass. 213
    , 218
    (2002).
    Following an evidentiary hearing, the pretrial motion judge
    found the following facts that we conclude are supported by the
    2
    In his reply brief and at oral argument, the defendant
    argued it was not his intention to waive this claim, but rather
    incorporated the authority contained in the trial pleadings in
    the interest of "judicial economy." This contention is
    unavailing.
    11
    evidence.   In investigating the victim's murder, the detectives
    initially brought the defendant's older brother, Cassim, to the
    police station for questioning because they had received
    information that he had been seen wearing a blue Detroit Tigers
    baseball cap, similar to the one found near the scene of the
    shooting.   Apparently satisfied that Cassim was not involved in
    the shooting, he was subsequently dropped off at home by a
    police officer after the interview.    Weaver was upset that
    Cassim had been taken to the police station.
    After speaking with Cassim, the focus of the investigation
    shifted to the defendant.    O'Leary went to the Weaver residence,
    apologized for bringing Cassim to the police station, and told
    Weaver that he wanted to speak to the defendant about the
    victim's murder.    Weaver knew the victim and was aware of the
    shooting.   Weaver told the police that the defendant was away at
    camp and that he would be returning on Sunday, August 24.
    Weaver and O'Leary agreed that they would meet, with the
    defendant present, on Monday, August 25.
    In the time between speaking with Weaver and the
    anticipated interview with the defendant, O'Leary learned that
    the Boston police had arrested the defendant on a drug offense
    on July 26, 2003.    The booking sheet generated after that arrest
    indicated that the defendant was wearing a Detroit Tigers
    12
    baseball cap.    This baseball cap closely resembled the baseball
    cap found near the scene of the victim's shooting.
    At approximately 8:30 P.M. on August 25, O'Leary returned
    to the Weaver home with another detective to meet with the
    defendant.   Although Weaver was cordial and respectful, the
    presence of the detectives in her home caused her to feel very
    uncomfortable.   Weaver had not had any previous contact with the
    police and she was still upset and concerned about the
    detectives conducting the interview with Cassim.    She invited
    the detectives to sit at the dining room table where she and the
    defendant joined them.    At some point during the conversation,
    Weaver left the table to continue cooking dinner in the
    adjoining kitchen.    The apartment had an open floor plan and the
    view from the dining room table to the kitchen was unobstructed.
    Before the detectives began questioning the defendant,
    O'Leary produced a waiver form that contained a printed version
    of the Miranda warnings especially for juveniles.    Upon seeing
    the form, Weaver asked if it was necessary to give her son the
    Miranda warnings.    O'Leary told her that it was "routine" and
    then explained that because his purpose was to question the
    defendant about the victim's shooting, the defendant should be
    advised of his Miranda rights before any questioning took place.
    O'Leary first asked the defendant to complete the part of the
    form containing his personal information.    The defendant did so
    13
    at his mother's direction.   O'Leary read each of the rights from
    the form and then asked Weaver and the defendant if they
    understood them.   He also asked them to initial the form after
    each warning to indicate that the rights had been explained to
    them.   The pretrial motion judge concluded that Weaver, though
    not highly educated, is an intelligent woman and understood
    those rights.
    Weaver noticed that the defendant was becoming "aggravated
    and frustrated" as the rights were being explained.   She told
    him to relax and breathe while encouraging him to sign the form.
    She and the defendant verbally acknowledged that they understood
    the rights being explained and initialed the form as requested.
    Weaver never explained her understanding of these rights to the
    defendant.
    After Weaver and the defendant signed the form, O'Leary
    told Weaver that she could speak with her son privately.   They
    went to the area near the stairs, away from where they had been
    sitting.   After a few minutes, they returned to the dining room.
    O'Leary stated that if they understood the rights and if they
    agreed to speak with them, the defendant should sign the part of
    the form that acknowledged that he had taken advantage of the
    opportunity to speak with his mother outside the presence of the
    police officers.   The defendant and his mother signed the form.
    14
    The detectives then questioned the defendant about the
    victim's shooting for about three hours.   Weaver occasionally
    left the table to continue cooking dinner but remained within
    earshot of the interview at all times.   The defendant denied
    that he was in the area of Wendover Street on the night of the
    shooting, that he was associated with any of the individuals
    named by the police, or that he knew about a fight involving the
    victim and other youths who had accused the victim of stealing a
    bicycle.
    The detectives asked more difficult questions that left no
    doubt that they suspected the defendant of having been involved
    in the shooting.   The defendant was unaware that the detectives
    had information that the defendant had fallen from his bicycle
    the night of the shooting.   O'Leary asked the defendant how (not
    if) the defendant had hurt his leg; the defendant said that he
    had injured it playing basketball.   Signaling his disbelief,
    O'Leary asked the defendant if it was possible that he had
    injured himself by falling off his bicycle the night of the
    shooting.    The defendant denied this, and said whoever said that
    was lying.   When pressed about when the basketball injury
    occurred, the defendant was unable to specify the date.   Weaver
    volunteered that they had gone to church on August 10 and that
    the defendant was not limping at that time.   After consulting a
    calendar and reviewing the events of the weeks passed, the
    15
    defendant said that his injury occurred two days after the
    shooting.
    The detectives then questioned the defendant about his
    Detroit Tigers baseball cap.    The defendant admitted to wearing
    such a cap when he was arrested on July 26.    He also agreed that
    the cap was distinctive on account of the airbrushed letter "D"
    on either side of the logo.    The defendant said that he had
    taken the cap to an establishment in downtown Boston to have the
    distinctive markings placed on it.    When asked where the cap
    was, the defendant stated that it was lost or stolen the same
    day that he hurt his leg playing basketball.    When pressed on
    the date, the defendant stood by his statement that it was lost
    on August 12.
    O'Leary then told the defendant that a witness had observed
    a black male matching the defendant's description running from
    the scene of the shooting and losing a baseball cap that had
    been recovered by the police.    He said that if the defendant was
    not wearing the cap it must have been Cassim.    The defendant
    denied that Cassim was at the scene.    O'Leary expressed his
    confidence that the defendant was present on Wendover Street on
    August 10 and was involved in the shooting.    The interrogation
    was terminated shortly thereafter.    O'Leary told the defendant
    that he "needed to know the truth" and that the investigation
    16
    would continue.    O'Leary told Weaver that he did not believe the
    defendant's story.
    Although he made no promises of leniency, O'Leary urged
    Weaver to "sit down and talk with [the defendant]," "have a
    heart to heart talk," and "try to figure out" his role in the
    events of the shooting.    O'Leary did not suggest questions to
    Weaver, but he suspected that the defendant was involved and was
    hoping for whatever information Weaver could provide to assist
    in the investigation.
    The pretrial motion judge found that neither Weaver nor the
    defendant asked the detectives to leave their home, nor did they
    ever request an attorney or seek in any way to terminate the
    interview.    The defendant's demeanor during the questioning was
    sober and coherent, except for when he seemed to be agitated
    that the same questions were being asked repeatedly.    The
    defendant did not appear to be under the influence of drugs or
    alcohol, incapacitated, or incompetent.    Although the detective
    suspected that the defendant was involved in the shooting, he
    did not have an arrest warrant and Weaver was free to terminate
    the questioning at any time.
    After the detectives left, Weaver began questioning her
    son.    She was upset that the detectives had come to her home and
    was concerned with some of the defendant's answers to their
    questions.    She was particularly concerned that the defendant's
    17
    baseball cap may have been found at the scene of the shooting
    and she wanted answers from him.     The pretrial motion judge
    found that she was as much concerned with her own need to
    clarify her son's involvement in a very serious crime as she was
    with the detective's request that she speak with the defendant.
    In her own words, she "wanted to have some peace with this
    thing."    She asked the defendant the same questions that she had
    heard the detectives asking and did not believe the defendant's
    answers.     After about an hour, she stopped questioning the
    defendant, and then sat in a chair for most of the night
    thinking about what had just happened.
    O'Leary telephoned Weaver the next morning while she was at
    work to ask if she had had the "heart to heart" talk with the
    defendant.    Weaver told him that she had not, but would when she
    got home from work.    She did not tell O'Leary about her
    conversation with the defendant from the night before.
    Because she was distracted by the events of the previous
    evening, Weaver decided to leave work early and arrived home
    around 10 A.M.    She decided to talk with the defendant again
    because she "didn't have peace with this thing in my mind."
    After about an hour she stopped questioning him because the
    questions and answers gave her a headache.    About one-half hour
    later, she called the defendant back to resume her questioning.
    She brought God into the conversation, and told the defendant
    18
    that a boy had died and that such a thing could not be a secret
    between children, that God knew about it, and that the defendant
    would have no life at all if he did not tell what he knew about
    the killing.   She continued to question him on and off until the
    late afternoon.   In an effort to get the defendant to tell the
    truth, she resorted to pounding her fist on the kitchen table
    and gritting her teeth.   The pretrial motion judge found that in
    seeking the truth about the defendant's involvement in the
    shooting, Weaver was motivated by a desire to do the right thing
    in accordance with her personal spiritual beliefs and was not
    acting as an agent of the police.
    Weaver then prayed again and told the defendant she would
    ask him two questions.    She asked if he was in the area when the
    shooting occurred; the defendant said, "Yes."   She then asked if
    he did it or if he knew who did it.   The defendant put his head
    down but said nothing; Weaver took this gesture to mean "Yes."
    Weaver, who the pretrial motion judge found to be a woman of
    sincere and deeply held religious convictions, began to cry and
    to pray out loud.   The defendant's sister came into the house
    and joined her mother in prayer.    Having realized the defendant
    may have been involved in a murder, Weaver insisted that the
    defendant had to confess for the good of his soul.
    The pretrial motion judge found that the concern and love
    that Weaver felt for her son expressed itself at this point in
    19
    her singular focus on his spiritual rather than his legal well-
    being.   She did not give the defendant any advice or counsel
    that would have made him aware of the need to avail himself of
    the constitutional protections to which he was entitled.       She
    did not tell the defendant to remain silent but rather advised
    him to tell the truth to the police.     She did not seek legal
    assistance for her son.
    At approximately 4 P.M., Weaver tried to contact O'Leary.
    He called her back at around 8 P.M. and she told him that she
    was bringing the defendant to speak with him.    O'Leary replied
    that he assumed the defendant was involved and Weaver said,
    "Yes."
    In the midst of the talk about God and surrender as the way
    to salvation, the defendant told his mother that he did not want
    to go to the police station.    In the end, however, he succumbed
    to his mother's entreaties that he confess for the good of his
    soul and turn himself in to the police.    Weaver formulated a
    plan that they would go to the police station, that he would
    say, "I shot Germaine Rucker," and the detectives would then
    take him into custody.    He was to say nothing more until a
    lawyer was appointed to represent him.    Sometime after midnight
    on August 27, the Weaver family concluded their prayer session
    and left their home to go to the police station which was a
    short distance away.   On the way, they prayed out loud.   When
    20
    they arrived at the station, at approximately 12:30 A.M., they
    stood together in a circle, praying for the defendant.    The
    defendant was crying.    They waited for O'Leary and the other
    detective to arrive.    No police officer had requested that the
    defendant be brought to the police station.
    When the detectives arrived, Weaver told O'Leary that the
    defendant had something to say to them, that she expected them
    to take him into custody after his statement and that she wanted
    him to have an attorney before they questioned him any further.
    Realizing that the defendant was about to make an inculpatory
    statement, O'Leary indicated that he would not take any
    statement until the defendant was represented by counsel.
    However, he did not tell the defendant to remain silent until
    they could arrange for an attorney.    At the same time, O'Leary
    produced a juvenile Miranda form from his briefcase and began
    reciting the warnings to the defendant.    As he did so and before
    he could finish reading the rights, the defendant said, "I shot
    Germaine Rucker."   O'Leary then arrested the defendant and read
    him his rights.   Until the defendant made the statements, he was
    free to leave the station.
    i.   August 25 statements.   The defendant first argues that
    the statements made in his home on August 25, 2003, should have
    been suppressed because he did not validly waive his Miranda
    rights before speaking with the police and because his
    21
    statements were not voluntary.    Rejecting these contentions, the
    pretrial motion judge concluded that the Miranda warnings were
    not required and that the defendant's statements were
    voluntarily made.   We agree.
    A.   Custodial interrogation.   Miranda warnings are required
    only when a defendant is subjected to a custodial interrogation,
    and "a defendant's failure to receive or understand Miranda
    warnings, or police failure to honor Miranda rights, does not
    result in suppression of a voluntary statement made in a
    noncustodial setting" (citation omitted).   Commonwealth v.
    Libby, 
    472 Mass. 37
    , 40 (2015).   Whether an interrogation is
    custodial depends on the "objective circumstances of the
    interrogation, and not on the subjective views of either the
    interrogating officers or the person being questioned."
    Commonwealth v. Sneed, 
    440 Mass. 216
    , 220 (2003).   This inquiry
    focuses on whether a reasonable person in the defendant's
    position would believe that his freedom of movement was
    restricted to the degree associated with formal arrest.
    Commonwealth v. Morse, 
    427 Mass. 117
    , 123 (1998).   In
    determining whether a defendant was in custody, the court
    considers "(1) the place of the interrogation; (2) whether the
    police conveyed any belief or opinion that the person being
    questioned was a suspect; (3) whether the questioning is
    aggressive or informal; and (4) whether the suspect was free to
    22
    end the interview by leaving the place of interrogation, or
    whether the interview ended with the defendant's arrest."
    Commonwealth v. Murphy, 
    442 Mass. 485
    , 493 (2004).
    We agree with the pretrial motion judge's findings that the
    environment in which the defendant was questioned was not
    inherently coercive because it occurred in the defendant's home,
    on a date and time of his convenience, and in his mother's
    presence.    See Commonwealth v. Conkey, 
    430 Mass. 139
    , 144
    (1999), S.C., 
    443 Mass. 60
     (2004) (interrogation not custodial
    where defendant allowed police into home to question him).
    Although the detectives informed the defendant that they
    believed he was involved in the crime being investigated, they
    did not coerce or threaten the defendant during the interview,
    and the defendant and his mother were free to terminate the
    interview at any time.
    We appreciate that Weaver, and not the defendant, invited
    the detectives into their home and permitted them to conduct the
    interview.    Nonetheless, we agree with the pretrial motion judge
    that a reasonable person in the defendant's position would not
    have viewed his questioning as coercive or believed that his
    freedom of movement was curtailed to the degree of arrest.
    Accordingly, the Miranda warnings were not required in
    connection with the August 25 interrogation.
    23
    B.   Interested adult.   We also agree with the pretrial
    motion judge's conclusion that, even if Miranda warnings were
    required, there is no merit to the defendant's argument that his
    waiver was invalid because he was not afforded the special
    protections due to juveniles.    "Investigating officials
    permissibly may interview a juvenile suspected of a crime, and a
    statement that is the product of that interview, if knowing and
    voluntary, may be admitted at trial against the juvenile."
    Commonwealth v. Philip S., 
    414 Mass. 804
    , 808 (1993).    However,
    the Commonwealth bears a heavy burden of demonstrating that a
    defendant knowingly and intelligently waived his privilege
    against self-incrimination.    Commonwealth v. Berry, 
    410 Mass. 31
    , 34 (1991), S.C., 
    420 Mass. 95
     (1995)    Where a defendant is a
    juvenile, the court proceeds with "special caution when
    reviewing purported waivers of constitutional rights" (quotation
    omitted).   
    Id.
       Where a juvenile is at least fourteen years of
    age, the Commonwealth must demonstrate that prior to waiving his
    rights, he was given the opportunity to consult with an
    interested adult who was informed of, and understood, those
    rights.   Id. at 35.
    In his motion to suppress, the defendant argued that his
    mother was not an "interested adult" because she did not
    understand the Miranda warnings and because she felt compelled
    to sign the waiver to have the defendant sign the waiver.    The
    24
    defendant also denied having the opportunity to consult with
    her.
    In determining whether an adult is an interested adult,
    "the facts must be viewed from the perspective of the officials
    conducting the interview."     Philip S., 
    414 Mass. at 809
    .    The
    court examines whether, at the time of the investigation, "it
    should have been reasonably apparent to the officials
    questioning a juvenile that the adult who was present on his or
    her behalf lacked capacity to appreciate the juvenile's
    situation and to give advice, or was actually antagonistic
    toward the juvenile."    
    Id.
       If such facts are present, the court
    is warranted in finding that the juvenile was not assisted by an
    interested adult and was not afforded the opportunity for
    consultation.    
    Id.
    Here, the pretrial motion judge explicitly found that
    Weaver understood the Miranda warnings, and we see no grounds to
    disturb this finding.    To the extent that the testimony of
    Weaver and that of the detectives differed on this point, we
    note that credibility determinations "are the province of the
    motion judge."    Commonwealth v. Johnson, 
    461 Mass. 44
    , 48
    (2011).    Moreover, viewing the circumstances from the
    perspective of the officers, it appeared that Weaver was an
    intelligent, responsible adult who cared for her son and was
    concerned for his welfare.     Additionally, the record reflects
    25
    that Weaver understood why the police were questioning her son,
    and she remained present or within listening distance throughout
    the interview.    Nor was there any apparent animosity between the
    defendant and Weaver.
    The judge also found that Weaver and the defendant had had
    a private consultation prior to signing the form and waiving
    their rights.    Even if Weaver and the defendant did not speak
    during this time, we note that "[i]t is not necessary for such a
    juvenile actually to consult with the interested adult, for it
    is the opportunity to consult that is critical."    Berry, 
    410 Mass. at 35
    .
    Additionally, the motion judge correctly found that Weaver
    was an interested adult despite encouraging the defendant to
    speak with the detectives and to tell the truth.    "We reject the
    notion that a parent who fails to tell a child not to speak to
    interviewing officials, who advises the child to tell the truth,
    or who fails to seek legal assistance immediately is a
    disinterested parent."    Philip S., 
    414 Mass. at 810
    .   See
    Commonwealth v. Quint Q., 
    84 Mass. App. Ct. 507
    , 517 (2013)
    (mother who advised son to be truthful with police was
    interested adult despite giving advice that would not have
    comported with that of lawyer).    In other words, an interested
    adult is not a proxy for a lawyer.    Accordingly, we conclude
    26
    that the defendant was afforded the protections of the
    interested adult rule.
    C.   Valid waiver.   Even assuming the Miranda warnings were
    required, we conclude the defendant's waiver of his Miranda
    rights was valid.   In determining whether a waiver is knowing
    and voluntary, the court examines the totality of the
    circumstances surrounding the waiver.    See Commonwealth v.
    Mazariego, 
    474 Mass. 42
    , 52-53 (2016).    Factors relevant to this
    inquiry include "promises or other inducements, conduct of the
    defendant, the defendant's age, education, intelligence and
    emotional stability, experience with and in the criminal justice
    system, physical and mental condition, the initiator of the
    discussion of a deal or leniency . . . and the details of the
    interrogation, including the recitation of Miranda warnings"
    (citation omitted).   Commonwealth v. Walker, 
    466 Mass. 268
    , 274
    (2013).
    The facts support the pretrial motion judge's conclusion
    that the defendant's waiver was knowing and voluntary.    The
    defendant and his mother were provided with Miranda warnings,
    which both understood.    The interrogation took place in the
    defendant's home and in the presence of his mother.    The record
    did not show that the defendant's will was overborne by his
    mother's directions to sign the form.    Although the interview
    lasted some time, the questioning was generally nonaggressive
    27
    and the police did not make any threats or promises to the
    defendant.    The defendant was young, but was of average
    intelligence and had had at least one prior experience with the
    police.   His responses to questions were coherent, and there was
    no evidence that he was under the influence of alcohol or other
    substances.    Nor did the defendant present any evidence that his
    mental state was otherwise compromised.    The defendant also made
    several statements aimed at exculpating himself, including
    stating that he was not at the scene of the shooting and
    providing an explanation for the injury to his leg.    See
    Commonwealth v. Vazquez, 
    387 Mass. 96
    , 100 (1982) (exculpatory
    statements tend to show defendant's statements are voluntary).
    D.   Voluntariness.   Due process requires a separate inquiry
    into the voluntariness of a defendant's inculpatory statements.
    Commonwealth v. Siny Van Tran, 
    460 Mass. 535
    , 559 (2011).    "A
    voluntary statement is one that is the product of a rational
    intellect and a free will, and not induced by physical or
    psychological coercion" (citation and quotations omitted).
    Commonwealth v. Monroe, 
    472 Mass. 461
    , 468 (2015).    The court
    examines the totality of the circumstances to determine whether
    the defendant's statements were the product of free will and
    rational intellect and "not the product of inquisitorial
    activity which had overborne his will" (citation omitted).    Siny
    Van Tran, supra at 559.    Relevant factors include "the
    28
    defendant's age, education, intelligence, physical and mental
    stability, and experience with the criminal justice system."
    Id.   Applying these factors to the circumstances, we conclude
    that the defendant's waiver was knowing and voluntary for
    largely the same reasons set forth above.     Additionally,
    although the defendant expressed frustration with the
    questioning, the record does not show that he was agitated or
    emotionally overwrought.    Cf. Monroe, 472 Mass. at 470-471
    (statements coerced where defendant demonstrated disturbed
    emotional state, was threatened by police and was crying, and
    was subjected to hostile interview).     Given these circumstances,
    the pretrial motion judge did not err in concluding that the
    defendant's statements on August 25, 2003, were voluntary, and
    not the product of physical or psychological coercion.
    ii.   August 27 statement.   The defendant also argues that
    the motion judge erred in denying his motion to suppress his
    statement at the police station, "I shot Germaine Rucker,"
    because it was obtained in violation of his Miranda rights and
    was involuntary.    As the pretrial motion judge correctly
    concluded, the Miranda warnings were not required because the
    defendant's statement was not the product of interrogation or
    its functional equivalent by the police.     See Commonwealth v.
    Gonzalez, 
    465 Mass. 672
    , 675 (2013) ("term 'functional
    equivalent' includes 'any words or actions on the part of the
    29
    police [other than those normally attendant to arrest and
    custody] that the police should know are reasonably likely to
    elicit an incriminating response from the suspect'" [citation
    omitted]).   Here, the detective was reciting the Miranda
    warnings when the defendant made his statement.    Although the
    detectives anticipated that the defendant would make a statement
    and were therefore providing the Miranda warnings, the statement
    was not made because of words or actions by the detectives meant
    to elicit it.
    A.   Agent of the police.   The defendant also argues that
    his statement should have been suppressed because his mother
    acted as an agent of the police when she brought him to the
    police station to make the statement.    A private party is
    considered a State agent when government officials prompt the
    party to act or participate with the party in an action which
    they themselves could not have legally engaged.    Commonwealth v.
    Jung, 
    420 Mass. 675
    , 686 (1995).    An individual is not a State
    agent if no promises are made in exchange for the individual's
    help and if nothing was offered or asked of that individual.
    Commonwealth v. Reynolds, 
    429 Mass. 388
    , 393 (1999), quoting
    Commonwealth v. Harmon, 
    410 Mass. 425
    , 428 (1991).    Here, the
    detectives urged Weaver to have a heart to heart conversation
    with her son to determine whether he participated in the
    shooting, and although he followed up on this request with a
    30
    telephone call to Weaver, he did not otherwise make any threats
    or promises to obtain her assistance.     Additionally, the
    detectives do not appear to have been trying to gain information
    through Weaver that they could not otherwise legally obtain
    themselves, especially where the defendant voluntarily submitted
    to questioning about the shooting.     Moreover, the pretrial
    motion judge's finding that Weaver aggressively questioned the
    defendant out of her desire to do what was right in accordance
    with her personal spiritual beliefs undercuts the defendant's
    argument.   See Commonwealth v. Foxworth, 
    473 Mass. 149
    , 158
    (2015); Reynolds, 429 Mass. at 393 (individual who has not
    entered into agreement with government or who reports
    incriminating evidence to police out of conscience not acting as
    government agent [quotation and citation omitted]).     We
    therefore reject the defendant's contention that Weaver was
    acting as an agent of the police in encouraging the defendant's
    confession.
    B.   Voluntariness.   We lastly consider the defendant's
    argument that his statement at the police station was
    involuntary and the product of coercion by his mother.       "[U]nder
    the law of this Commonwealth, a judge must determine the
    voluntariness of statements extracted by private coercion,
    unalloyed with any official government involvement" (quotation
    and citation omitted).     Commonwealth v. Paszko, 
    391 Mass. 164
    ,
    31
    176-177 (1984).   "[A] statement obtained through coercion and
    introduced at trial is every bit as offensive to civilized
    standards of adjudication when the coercion flows from private
    hands as when official depredations elicit a confession"
    (citation omitted).   Commonwealth v. Allen, 
    395 Mass. 448
    , 455
    (1985).   Accordingly, our inquiry is governed by the same
    analysis delineated above regarding the voluntariness of the
    defendant's August 25 statements.
    The defendant argues that his mother coerced his August 27
    confession by relentlessly questioning him for two days about
    his involvement in the shooting, by demanding that he tell the
    truth, and by making him feel guilty by praying and invoking God
    and the need to "be at peace," and by forcing him to travel to
    the police station to confess.   It is well-settled that a
    defendant may offer evidence that a relative's involvement in
    questioning about a crime is coercive.   See Commonwealth v.
    McCra, 
    427 Mass. 564
    , 569 (1998); Commonwealth v. Adams, 
    416 Mass. 55
    , 60-61 (1993).   The pretrial motion judge concluded
    that although Weaver's exhortations played a major role in the
    defendant's decision to confess, the circumstances of the
    confession did not evidence that the defendant's will was
    overborne to the extent that he lost his ability to make an
    independent decision.   Cf. Commonwealth v. Burgess, 
    434 Mass. 307
    , 314 (2001) (police may "broadly" suggest that it would be
    32
    best for suspect to tell truth); Commonwealth v. Cunningham, 
    405 Mass. 646
    , 658 (1989) (defendant's statement, prompted by urging
    of police and priest that it would be best to tell truth, not
    psychologically coerced where defendant made voluntary decision
    to make statement, in part to unburden troubled conscience);
    Philip S., 
    414 Mass. at 813
     (court declined to consider requests
    that juvenile tell truth as coercive practice).
    We agree with the pretrial motion judge's findings that the
    defendant was not physically or psychologically coerced by his
    mother and her religious beliefs such that he could not resist
    her pleas that he tell the truth.   The defendant and his family
    prayed at the police station, and the defendant cried, but he
    was not otherwise overwrought such that his statement was not
    the product of free will and a rational intellect.   Moreover,
    the defendant does not argue that his mother's efforts to get
    him to confess were an improper appeal to his religious beliefs.
    In fact, the record does not demonstrate whether the defendant
    held the same beliefs as his mother.   Cf. United States v.
    Miller, 
    984 F.2d 1028
    , 1032 (9th Cir.), cert. denied, 
    510 U.S. 893
     1993);   Mersereau v. State, 
    286 P.3d 97
    , 115 (Wyo. 2012)
    (court considered whether appeal to suspect's religious beliefs
    was unduly coercive).   Nor did his mother, in invoking God,
    indicate that the defendant would be treated more leniently if
    he confessed.   We thus conclude that Weaver's questioning of the
    33
    defendant did not rise to the level of improper psychological
    coercion that would render his statement involuntary, and the
    defendant's confession on August 27 was a free and voluntary
    act.
    Accordingly, we conclude that the judge did not err in
    denying the defendant's pretrial motion to suppress on the
    various grounds asserted by the defendant.
    3.   Ineffective assistance of counsel.   a.   Mental health
    expert.     The defendant argues that the judge who heard one
    portion of his motion for a new trial (first new trial motion
    judge) 3 erroneously denied that portion of the motion, which was
    based on the failure of the defendant's trial counsel to
    investigate the defense of psychological coercion adequately by
    not consulting with a mental health expert or presenting expert
    testimony about the voluntariness of the defendant's confession
    at either the suppression hearing or at trial. 4      The defendant
    also contends that the first new trial motion judge erred
    3
    In his motion for a new trial, the defendant asserted two
    bases for ineffective assistance of counsel. Because the trial
    judge had retired, the issues were bifurcated and decided by
    judges other than the trial judge.
    4
    The defendant initially argued that trial counsel should
    have consulted with an expert and presented expert testimony on
    the existence and etiology of false confessions, in addition to
    expert testimony on the issue of voluntariness. On appeal, the
    defendant abandons this argument and acknowledges we have not
    yet ruled such evidence admissible. Commonwealth v. Hoose, 
    467 Mass. 395
    , 419 (2014).
    34
    because he failed to distinguish between testimony concerning
    the voluntariness of a statement and the phenomenon of false
    confessions.   We conclude that the motion was properly denied,
    although for reasons different than those stated by the judge.
    In a written memorandum of decision and order issued after
    three days of evidentiary hearings, the first new trial motion
    judge made the following findings of fact. 5   The defendant's
    trial counsel is a very experienced and highly regarded defense
    attorney.   He has practiced law for over forty years and handled
    over one hundred murder trials at the trial and appellate level.
    Because the defendant was sixteen years of age, trial counsel
    spent a great deal of time speaking with the defendant's mother
    about the circumstances surrounding the defendant's statements
    to her, and formulated the defense that the police used Weaver
    as their agent to induce the defendant to admit his involvement
    in the homicide.   Trial counsel moved to suppress the
    defendant's August 27, 2003, statement to the police on that
    5
    Because the judge who heard this portion of the
    defendant's motion for a new trial (first new trial motion
    judge) drew facts about the murder, investigation, and
    defendant's admission from those found by the judge had who
    presided over the defendant's pretrial motion to suppress, we do
    not repeat them here. Insofar as relevant here, the first new
    trial motion judge based his additional findings on the
    affidavits and testimony of the defendant's trial counsel and
    Dr. Frank DiCataldo, a psychologist whom the defendant had
    retained, as well as the affidavits of the defendant and his
    mother, Weaver. The affidavits submitted by the defendant and
    Weaver reiterated that the defendant's statements were not the
    product of his free will, but rather were coerced by Weaver.
    35
    ground, as well as on the ground that Weaver failed to act as an
    interested adult for her son by impermissibly pressuring him to
    confess to the police.
    Trial counsel testified that he prepared a defense by
    learning the facts of a case and then, starting from scratch,
    researching the law as it related to the issues presented.     The
    judge found that at the time trial counsel litigated the motion
    to suppress and tried the case, he had researched but was not
    aware of any appellate or trial court decisions permitting
    expert testimony on claimed coerced or false confessions. 6
    According to trial counsel, there was no strategic reason not to
    consult with or present an expert on psychological coercion, and
    that given the nature of the defense, it would not have harmed
    the defense to do so.
    In connection with the motion for a new trial, Dr. Frank
    DiCataldo, a forensic psychologist, examined the defendant and
    testified at the evidentiary hearing.   DiCataldo did not find
    any evidence that the defendant suffered from any significant
    cognitive limitations and did not detect any signs of mental
    illness.   After administering two psychological tests,
    6
    The first new trial motion judge noted that trial counsel
    had defended one case where a codefendant's request to present
    expert testimony on coerced and false confessions was denied
    because it failed to satisfy the standards of expert testimony,
    and that the ruling was affirmed on appeal. See Commonwealth v.
    Robinson, 
    449 Mass. 1
    , 5-7 (2007). Trial counsel acknowledged
    he would have been aware of the decision.
    36
    interviewing the defendant, and gaining an understanding of the
    defendant's family dynamics, DiCataldo opined that by virtue of
    a protracted investigation by his mother, the defendant's
    admissions were not the product of his own free will or rational
    intellect.    DiCataldo acknowledged that the basis for his
    opinion was limited because he had never evaluated a
    voluntariness claim where the asserted coercive force was a
    parent, or where the statement was made ten years prior to the
    evaluation.    DiCataldo also acknowledged that neither of the
    tests he administered to the defendant was specifically focused
    on juveniles and that there are no specific psychological tests
    to determine whether a person's will has been overborne.
    Applying the standard set forth in Commonwealth v.
    Saferian, 
    366 Mass. 89
    , 96 (1974), the first new trial motion
    judge denied the defendant's motion.   In doing so, he rejected
    the defendant's claim that trial counsel was ineffective for
    failing to consult with an expert witness.   The judge found that
    it was more likely than not that trial counsel was aware of the
    absence of Massachusetts case law permitting expert testimony on
    the psychology of coerced and false confessions, and did not
    consult an expert because it would not have added value to the
    defense.
    The judge further concluded that the defendant failed to
    satisfy the prejudice prong of a Saferian analysis because he
    37
    could not demonstrate, as a threshold matter, that DiCataldo's
    testimony would have been admissible under the foundational
    requirements of Mass. G. Evid. § 702(b) (2016).   Additionally,
    the judge found that the parent-child dynamic is so generally
    familiar to a fact finder that expert testimony was not required
    to further illuminate the issue for a jury.   Moreover, the
    psychological influences of a parent on her child are
    categorically different from those of other authority figures,
    such as the police.   Thus, the judge found, DiCataldo's reliance
    on scientific research involving the impact of psychologically
    coercive or manipulative techniques by police to obtain a
    statement do not provide a basis for his opinion that, in this
    case, the defendant was coerced by his mother's conduct.     The
    judge concluded that because DiCataldo's proffered testimony was
    inadmissible under § 702(b), trial counsel's failure, either to
    consult an expert or attempt to present expert testimony, could
    not have prejudiced the defendant's case.
    Where a defendant has been convicted of murder in the first
    degree, the court evaluates a claim of infective assistance
    claim to determine whether "there exists a substantial
    likelihood of a miscarriage of justice," Commonwealth v.
    Williams, 
    453 Mass. 203
    , 204 (2009).   The court asks "[1]
    whether there was an error in the course of trial (by defense
    counsel, the prosecutor, or the judge), and, [2] if there was,
    38
    whether that error was likely to have influenced the jury's
    conclusion" (citation omitted).   Commonwealth v. Lang, 
    473 Mass. 1
    , 19 (2015) (Lenk, J., concurring).    This standard is more
    favorable than the constitutional standard for determining
    ineffectiveness of counsel.    Commonwealth v. Gonzalez, 
    443 Mass. 799
    , 808 (2005).   The court considers the defendant's claim
    "even if the action by trial counsel does not constitute conduct
    'falling measurably below that . . . of an ordinary fallible
    lawyer'" (citation omitted).   Id. at 808-809.
    Where a defendant challenges tactical or strategic
    decisions by trial counsel, the court will find ineffective
    assistance "only if such a decision was manifestly unreasonable
    when made."   Commonwealth v. Diaz, 
    448 Mass. 286
    , 288 (2007).
    However, the "manifestly unreasonable standard" only applies
    "where the attorney's purportedly constitutionally ineffective
    conduct involved a strategic decision, rather than some other
    claimed inadequacy such as a lack of appropriate investigation
    or preparation by defense counsel."    Lang, 473 Mass. at 20
    (Lenk, J., concurring), citing Commonwealth v. Martin, 
    427 Mass. 816
    , 822 (1998).
    In Lang, trial counsel was aware of the defendant's
    psychiatric history but chose to pursue another defense without
    investigating a criminal responsibility defense.    Lang, 473
    Mass. at 11-12 (Hines, J., concurring).    A majority of justices
    39
    concurred that the "manifestly unreasonable standard" did not
    apply in these circumstances because "strategic choices made
    after less than complete investigation are reasonable [only] to
    the extent that reasonable professional judgments support the
    limitation on investigation."    Id. at 19 (Lenk, J., concurring),
    quoting Commonwealth v. Baker, 
    440 Mass. 519
    , 529 (2003).
    Although Lang and the cases cited therein relate to the adequacy
    of an investigation into a lack of criminal responsibility
    defense, these cases provide a useful framework for evaluating
    the defendant's claim.
    Here, the first new trial motion judge found that there was
    no evidence showing that trial counsel's failure to consult with
    a mental health expert was a lapse rather than a reasoned
    decision.   This finding was confined to trial counsel's
    investigation into case law permitting expert testimony on
    psychological coercion as it related to false confessions and
    did not address trial counsel's strategy with respect to expert
    testimony about voluntariness.   We therefore assume without
    deciding that trial counsel's failure to consult with a mental
    health expert was not a strategic or tactical decision and thus
    manifestly unreasonable.   Accordingly, we ask only whether the
    failure to consult a mental health expert or to present expert
    testimony at trial as to the voluntariness of the defendant's
    statements "was likely to have influenced the jury's
    40
    conclusion."    Commonwealth v. Wright, 
    411 Mass. 678
    , 682 (1992),
    S.C., 
    469 Mass. 447
     (2014).
    In order to carry his burden of demonstrating that the
    expert consultation and testimony would have accomplished
    something material for the defense, Commonwealth v. Bell, 
    460 Mass. 294
    , 303 (2011), the defendant, as a threshold matter,
    must demonstrate that DiCataldo's testimony would have been
    admissible.    The first new trial motion judge correctly
    concluded that DiCataldo's testimony regarding a child's
    susceptibility to parental coercion generally, or the
    defendant's susceptibility to coercion by his mother would not
    have been admissible.
    Section 702 of the Massachusetts Guide to Evidence
    governing the admission of expert testimony provides:
    "A witness who is qualified as an expert by
    knowledge, skill, experience, training, or education
    may testify in the form of an opinion or otherwise if
    "(a) the expert's scientific, technical, or other
    specialized knowledge will help the trier of fact to
    understand the evidence or to determine a fact in
    issue;
    "(b) the testimony is based on sufficient facts
    or data;
    "(c) the testimony is the product of reliable
    principles and methods; and
    "(d) the expert has reliably applied the
    principles and methods to the facts of the case."
    Mass. G. Evid. § 702 (2016).
    41
    DiCataldo's evaluation of the defendant was based on his
    assessment of the defendant through the administration of
    psychological tests and information provided by the defendant
    and his mother.   The first new trial motion judge noted that the
    facts relied on by DiCataldo were substantially different from
    those presented at the hearing on the motion to suppress and
    found by the pretrial motion judge.   Additionally, DiCataldo
    created his own methodology for forming an opinion about the
    voluntariness of the defendant's statement because he was not
    aware of any peer-reviewed or generally accepted methodology
    within the psychological community that would apply to the
    circumstances in this case.
    We have explained that "expert testimony is sufficiently
    reliable if the underlying theory or methodology is either (1)
    generally accepted in the relevant scientific community; . . .
    or (2) satisfies the alternative requirements adopted in
    [Commonwealth v. Lanigan, 
    419 Mass. 15
    , 24-26 (1994)]" (citation
    omitted).   Commonwealth v. Shanley, 
    455 Mass. 752
    , 761-762,
    (2010).   The defendant claims that he demonstrated the
    admissibility of DiCataldo's testimony by establishing general
    acceptance in the psychological community.   We disagree.
    First, the defendant relies on the false logic that because
    DiCataldo has rendered his expert opinion in other cases in the
    42
    Commonwealth, his opinion was admissible in this case.   We
    reject this unsubstantiated statement.   The defendant does not
    point to a single case where DiCataldo testified about the
    coercion of a child by a parent.
    The defendant further argues that the first new trial
    motion judge erred in ruling that DiCataldo's testimony was
    inadmissible because the courts of the Commonwealth have long
    recognized that a defendant is entitled to present expert
    testimony by a mental health expert regarding the voluntariness
    of a statement, and that trial counsel should have sought expert
    testimony in light of this precedent, and that such testimony is
    admissible.   The defendant cites to several cases to illustrate
    this point.   Notably, in each of these cases, the proffered
    expert testimony related to a mental impairment that called into
    question the voluntariness of the defendant's statements.     See,
    e.g., Commonwealth v. Boyarsky, 
    452 Mass. 700
    , 713 (2008) (panic
    disorder); Commonwealth v. Crawford, 
    429 Mass. 60
    , 67 (1999),
    overruled on another ground by Commonwealth v. Carlino, 
    449 Mass. 71
     (2007) (battered woman's syndrome and posttraumatic
    stress disorder); Commonwealth v. Monico, 
    396 Mass. 793
    , 798-799
    (1986) (head trauma that impacted voluntariness of statements
    and raised question of criminal responsibility); Commonwealth v.
    Daniels, 
    366 Mass. 601
    , 608 (1975) (intellectual disability);
    Commonwealth v. Harrison, 
    342 Mass. 279
    , 289, 293 (1961) (head
    43
    trauma, mental illness, personality disorder, "defective
    intelligence," psychosis); Commonwealth v. Banuchi, 
    335 Mass. 649
    , 655-656 (1957) (effect of sudden deprivation of alcohol on
    mental capacity of confirmed alcoholic).
    The defendant argues that in rejecting DiCataldo's
    testimony as inadmissible, the first new trial motion judge
    concluded that "psychology as a science was incapable of
    yielding reliable admissible evidence probative of a statement's
    voluntariness." Such an assertion is unfounded.    Rather, our
    case law demonstrates that when expert testimony as to a novel
    or developing area of science is offered, the court carefully
    considers whether it is "sufficiently reliable to reach the
    trier of fact."   Shanley, 455 Mass. at 761.   See, e.g.,
    Commonwealth v. Hoose, 
    467 Mass. 395
    , 419 (2014); Crawford, 429
    Mass. at 67.
    In addition to determining the reliability of an expert's
    proffered testimony, "[t]he judge must also determine whether
    the reasoning or methodology can be applied to the facts in
    issue -- that is, whether there is a proper 'fit' between the
    two."   Shanley, 455 Mass. at 761 n.13.   Here, DiCataldo, in
    addition to employing a one of a kind methodology to evaluate
    the defendant, relied on research involving the impact of
    psychologically coercive or manipulative techniques by police to
    obtain a statement to evaluate whether the defendant had been
    44
    coerced by his mother.    Not only is this reasoning a poor "fit,"
    but it also depends on expert testimony on false confessions,
    which we have not yet ruled admissible.    Hoose, 467 Mass. at
    419.
    Similarly misplaced is the defendant's reliance on our
    decisions in Commonwealth v. Jackson, 
    471 Mass. 262
    , 264 n.5
    (2015), cert. denied, 
    136 S. Ct. 1158
     (2016), and Adams, 
    416 Mass. at 61
    , where expert testimony was admitted to aid the jury
    in assessing the voluntariness of a juvenile's statements.      In
    Jackson, supra at 264 n.5, the voluntariness of the defendant's
    statements to the police was an important issue at trial.    The
    defendant called a clinical psychologist to testify "about his
    examination of the defendant and his opinion with regard to the
    defendant's susceptibility to being influenced by persons in
    authority like the police."    Id.
    While these facts are superficially similar to the
    defendant's case, there are important distinctions to be drawn.
    Although the admissibility of the expert testimony was not at
    issue in our decision in Jackson, our review of the record
    before the court in that case reveals that the defendant was
    evaluated by the clinical psychologist because there was a
    question of criminal responsibility and competency to stand
    trial.    The psychologist conducted a forensic mental health
    assessment of the defendant, which included extensive
    45
    investigation into the defendant's past as well as interviews
    and a number of psychological assessment tests of the defendant.
    He testified that the defendant suffered from attention deficit
    disorder and dependent personality disorder, and that these
    conditions made him more susceptible to being influenced by
    people in positions of authority.   The methodology used by the
    psychologist and its application to the facts in Jackson were
    profoundly different from those used by DiCataldo.   Moreover,
    the defendant in Jackson, 471 Mass. at 264 n.5, presented
    evidence that it was his mental health impairments that made him
    more susceptible to pressure by authority figures.   Here, the
    defendant sought to present evidence that his will was simply
    overborne by his mother.   These inquiries are fundamentally
    distinct.
    Similarly, in Adams, 
    416 Mass. at 60-61
    , we held that it
    was error to exclude testimony from the defendant's mother and a
    forensic psychiatrist tending to show that the defendant had
    been coerced into confessing by the presence of his mother.
    Although we do not know the methodology employed by the
    psychiatrist in evaluating Adams, it is apparent from the
    unpublished memorandum and order that the Appeals Court issued
    pursuant to its rule 1:28 following Adams's retrial that there
    was a contention that his intellectual abilities or disabilities
    may have affected the voluntariness of his statement.   As
    46
    discussed earlier, while we regularly admit expert testimony
    regarding the voluntariness of a statement where the defendant
    suffers from a mental impairment or mental health issue, there
    is no evidence that the defendant here had cognitive limitations
    or suffers from a mental illness that would affect his capacity
    to make a voluntary statement.
    Finally, we agree with the first new trial motion judge's
    determination that the parent-child dynamic is generally
    familiar to a fact finder, and that the likelihood of a child
    being influenced by a parent is not a matter outside the common
    understanding of the average juror, nor is the proposition that
    a parent may exert pressure on his or her child a novel one.
    Thus, the jury's evaluation of whether the defendant's
    statements were psychologically coerced by his mother "could be
    accomplished through its common understanding without need of
    expert testimony."   Commonwealth v. Bly, 
    448 Mass. 473
    , 496
    (2007).
    Our conclusion that DiCataldo's testimony would not have
    been admissible at trial does not foreclose a defendant from
    presenting expert testimony regarding coercion and
    voluntariness.   "Determining whether . . . scientific testimony
    is reliable often will hinge on the presentations made by the
    parties in a particular case . . . and these determinations may
    vary appropriately on a case-by-case basis."   Canavan's Case,
    47
    
    432 Mass. 304
    , 312 (2000).    In this case, the defendant failed
    to show that the methodology used by DiCataldo would be
    generally accepted by the scientific community or was otherwise
    admissible under the factors articulated in Lanigan.    Because
    the testimony would not have been admissible at the defendant's
    trial, we cannot conclude that it would have accomplished
    something material for the defense such that the jury verdict
    would have been different.    Accordingly, the defendant's claim
    of ineffective assistance must fail.
    b.   Public trial.   The defendant next claims error in the
    denial of the portion of his motion for a new trial that rested
    on the ground that his trial counsel was ineffective for failing
    to object to the closure of the court room during the entirety
    of jury empanelment.
    After an evidentiary hearing, the judge who hear this
    portion of the motion (second new trial motion judge) issued a
    written memorandum of decision in which she found the following
    facts, which are supported by the evidence.    Jury selection
    spanned two days.    The approximately ninety venire members made
    the court room was very crowded.    They took every available
    seat, and those who could not find seats stood wherever they
    could.    On the first day of empanelment, a court officer
    informed the defendant's mother that she and those accompanying
    her that the court room was "closed for jury selection."     They
    48
    were also denied entry the second day of empanelment for the
    same reason.    Trial counsel lodged no objection.
    The second new trial motion judge concluded that the sole
    reason that a court officer closed the court room to the
    defendant's family and other members of the public was the
    crowded condition.    The judge found that facts surrounding the
    empanelment did not satisfy the criteria articulated in Waller
    v. Georgia, 
    467 U.S. 39
    , 48 (1984), that may justify a court
    room closure, but concluded that the closure did not prejudice
    the defendant's case, and accordingly denied the motion.
    A violation of the Sixth Amendment right to a public trial
    constitutes structural error.    See Commonwealth v. Jackson, 
    471 Mass. 262
    , 268 (2015), citing United States v. Marcus, 
    560 U.S. 258
    , 263 (2010).   We agree with the second new motion judge's
    conclusion that the closure was a full, rather than partial,
    closure of the court room.    See Commonwealth v. Cohen (No. 1),
    
    456 Mass. 94
    , 111 (2010); Commonwealth v. Lavoie, 
    80 Mass. App. Ct. 546
    , 551-552 (2001), S.C., 
    464 Mass. 83
    , cert denied, 
    133 S. Ct. 2356
     (2013).
    Where a meritorious claim of structural error is timely
    raised, the court presumes "prejudice, and reversal is
    automatic."    Jackson, 471 Mass. at 268, quoting Commonwealth v.
    LaChance, 
    469 Mass. 854
    , 856 (2014), cert. denied, 
    136 S. Ct. 317
     (2015).    However, the right to a public trial can be waived
    49
    in some circumstances.   Jackson, supra.   "[W]here the defendant
    has procedurally waived his Sixth Amendment public trial claim
    by not raising it at trial, and later raises the claim as one of
    ineffective assistance of counsel in a collateral attack on his
    conviction, the defendant is required to show prejudice from
    counsel's inadequate performance (that is, a substantial risk of
    a miscarriage of justice) and the presumption of prejudice that
    would otherwise apply to a preserved claim of structural error
    does not apply."   LaChance, supra at 856.
    The defendant did not raise an objection to the court room
    closure because his attorney did not understand that the public
    had a right to be present during the jury empanelment phase of
    the trial proceedings.   The second new trial motion judge's
    analysis, which anticipated the rule announced in LaChance,
    supra, correctly determined that counsel's inaction was the
    product of "serious incompetency, inefficiency, or inattention
    to the defendant's Sixth Amendment right to a public trial, and
    was not objectively reasonable," but that the defendant
    otherwise failed to show that trial counsel's conduct caused
    prejudice warranting a new trial.
    On appeal, the defendant does not dispute that he failed to
    demonstrate prejudice, but rather asks us to revise the LaChance
    rule and instead hold that that a defendant who raises an
    ineffective assistance of counsel claim and has established
    50
    that, in failing to object to a court room closure, counsel's
    performance fell below that of an ordinary fallible attorney, is
    entitled to a presumption of prejudice.    See LaChance, supra at
    860-868 (Duffly, J., dissenting).    We decline to do so.
    Moreover, the defendant has not advanced any argument or
    demonstrated any facts that would support a finding that the
    closure subjected him to a substantial likelihood of a
    miscarriage of justice.   Relief is therefore not warranted under
    G. L. c. 278, § 33E, and the denial of the motion for a new
    trial is affirmed.
    4.   Firearms conviction.   The defendant lastly asks the
    court to vacate his firearms conviction on the grounds that the
    Commonwealth presented no evidence that he lacked the required
    firearms licenses, and thus failed to prove beyond a reasonable
    doubt that he did not have a license to carry.    Contrary to the
    defendant's assertion, lack of license is not an element of
    unlicensed possession, but rather an affirmative defense.
    Commonwealth v. Allen, 
    474 Mass. 162
    , 174 (2016), and cases
    cited.    Accordingly, the defendant bore the burden of producing
    evidence that he held a license, and he failed to carry that
    burden.
    5.   Review under G. L. c. 278, § 33E.   We have reviewed the
    record in accordance with G. L. c. 278, § 33E, and we discern no
    basis on which to reduce the verdict of murder in the first
    51
    degree or to order a new trial.   The defendant's convictions are
    affirmed.   Based on the record before us, it appears that the
    defendant is entitled to the benefit of a corrected mittimus to
    reflect that his life sentence under G. L. c. 265, § 2 carries
    with it the opportunity for parole consideration after fifteen
    years because he was a juvenile at the time of his conviction.
    See Diatchenko v. District Attorney for the Suffolk Dist., 
    466 Mass. 655
    , 673 (2013), S.C., 471 Mass 12 (2015), and
    Commonwealth v. Brown, 
    466 Mass. 676
    , 688-689 (2013), S.C., 
    474 Mass. 576
     (2016).   The matter is accordingly remanded to the
    Superior Court for further proceedings consistent with this
    opinion.
    So ordered.